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UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


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Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows  : 

1.  (§.  Btxccind  Bftifemenf  of  fearing  pnncipfes  in  Bfacfi; 

fetter  tgpc. 

2.  (^  more  txtcnt)tt>  contmentarg,  cfxxd^aiinq  t^e  jmncipfee. 

3-  (Uotes  ftnb  aut^oritiee. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75  per  t)oftime,  mdui)inQ  ^efiDerg. 

Bound  in  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.      (3d  Edition.) 

2.  Clark's   Criminal  Law.      (2d  Edition. ) 

3.  Shipman^s  Common- La7V  Pleading.      (2d  Edition.) 

4.  Clark  on   Contracts.      (2d  Edition  ) 

5.  Black's   Constitutional  Law.      (2d- Edit  ion.) 

6.  Fetter  on  Equity. 

7.  Clark  on   Criminal  Procedure. 

8.  Tiffany  on  Sales. 

9.  Glenn' s  Lnternational  Laiv. 

10.  Jaggard  on   Torts.      (2  vols.) 

11.  Black  on  Lnterpretation  of  Laws. 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Law. 

14.  LLale  on  Damages. 

15.  Hopkins  on  Real  Property. 

16.  Hale  ofi   Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on   Corporations.      ( 2d  Editiofi.) 

20.  George  on  Partnership. 

21.  Shipman  ofi  Equity  Pleading. 

22.  McKelvey  on  Evidence. 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffajzy  on  Principal  and  Agent. 

27.  Gardner  on   Wills. 

28.  Vance  on  Insurance. 

29.  Ingersoll  o?i  Public   Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure. 


In  preparation:     Hanalfooks  of  the  law  on  other  subjects 
to  be  announced  later. 

^ufilis^eb  an^  for  safe  fig 

<We6t  Qt)u6fi6^in5  Co.,  ^i.  (pauf,  (gltnn. 

C5855 


HANDBOOK 


OK    THE 


LAW  OF  CONTRACTS 


By  WM.  L.  CLARK,  Jr. 

Author  of  Clark's  Handbook  of  Criminal  Law 


SECOND  EDITION 

By  FRANCIS    B.  TIFFANY 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 
1904 


...',.  .    ;  •  :  ''.  ...  ;••  .* 

...     •  •  . •    . •  -  . 


Ck)py  right,  1894, 

BT 

WEST  PUBLISHING  COMPANY. 


Copyright,  1904, 


BT 


WEST  PUBLISHING  COMPANTT. 


•     I 


•t*i*»t\»     ti< 


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PREFACE  TO  THE  SECOND  EDITION. 


In  preparing  the  present  edition  the  editor  ha-s  had  the  benefit  of 
suggestions  made  by  many  instructors  who  have  used  Mr.  Clark's 
book  in  the  class  room.  Some  new  matter  has  been  added,  which  has 
led  to  the  condensation  of  portions  of  the  original  text ;  and  some  cases 
formerly  cited  have  been  omitted  to  make  room  for  more  recent  cases, 
but  the  editor  has  endeavored  to  retain  all  leading  cases  cited  by  IMr. 
Clark.  The  chapters  on  Agency  and  Quasi  Contracts,  although  per- 
haps somewhat  beyond  the  scope  of  an  elementary  book  on  Contracts, 
have  been  retained  with  little  change,  for  the  benefit  of  schools  which 
do  not  make  these  topics  the  subjects  of  separate  courses. 

The  publishers  have  adopted  the  device  of  printing  in  bold  type  the 
names  of  cases  cited  in  the  notes  which  are  found  in  certain  of  the  col- 
lections of  leading  cases.  The  cases  so  printed  are  to  be  found  in  Hop- 
kins' Cases  on  Contracts,  Langdell  &  Williston's  Cases  on  Contracts, 
Williston's  Cases  on  Contracts,  Hufifcut  &  Woodruff's  American  Cases 
on  Contracts,  Keener's  Cases  on  Contracts,  and  Keener's  Cases  on 

Quasi  Contracts.  «  ^  « 

^  F.  B.  T. 

SL  Paul,  June  3.  1904, 

fv) 


PREFACE  TO  THE  FIRST  EDITION. 


In  preparing  this  work  the  object  has  been  to  present  the  general 
principles  of  the  law  of  contract  clearly  and  concisely,  with  proper 
explanations  and  illustrations, — not  to  make  a  digest.  There  has 
been  no  attempt  to  be  original  for  the  mere  sake  of  originality.  State- 
ments of  rules  have  been  freely  taken  from  recognized  authorities. 
So  much  use  has  been  made  of  Sir  William  Anson's  and  Mr.  Leake's 
works,  that  acknowledgment  has  not  always  been  made  in  the  notes. 
A  general  acknowledgment  is  therefore  made  here.  Where  matter 
has  been  obtained  from  other  sources  it  has  been  duly  acknowledged. 

Nearly  10,000  cases  have  been  cited.  Every  one  of  them  has  been 
personally  examined,  and  is  cited  because  in  point, — not  because  it 
has  been  cited  by  some  other  writer,  or  in  some  other  case,  or  because 
it  is  found  in  the  digests.  A  few  cases  have  been  cited  for  their  val- 
uable dicta,  or  because  they  collect  and  discuss  the  cases,  but  in  most 
instances  the  cited  case  will  be  found  to  embody  an  actual  decision 
directly  in  point.  Where  a  number  of  decisions  have  been  cited  to 
the  same  point,  the  leading  cases  and  those  best  illustrative  of  the 
principle  involved  have  been  cited  first. 

W.  L.  C,  Jr. 

St.  Paul,  Minn.,  November  15,  1894. 

(vi) 


TABLE  OF   CONTENTS. 


CHAPTER  I. 

DEFINITION,  NATURE,  AND  REQUISITES  OF  CONTRACT  IN  GENERAL. 

Section  Page 

1-2.     Contract  Defined 1-2 

3.  Agreement   2-4 

4.  Obligation    5-6 

5.  Concurrence  of  Agreement  and  Obligation 6-9 

6.  Promise 9-10 

7-9.     "Void,"  "Voidable."  and  "Unenforceable"  Agreements 10-11 

10.    Essentials  of  Contract 12 


CHAPTER  II. 

OFFER  AND  ACCEPTANCE. 

11-13.     In  General  13-15 

14-15.     Communication  by  Conduct — Implied  Conti'acts 15-18 

16.  Communication  of  Offer 18-20 

17.  Necessity  and  Effect  of  Acceptance 21-22 

18-20.     Communication  of  Acceptance _. 22-27 

21.     Character,  Mode,  Place,  and  Time  of  Acceptance 27-31 

22-23.     Revocation  of  Offer 31-36 

24.  Lapse  of  Offer 36-38 

25.  Offers  to  the  Public  Generally 38^0 

26.  Offer  as  Referring  to  Legal  Relations 40-46 


CHAPTER  in. 

CLASSIFICATION  OF  CONTRACTS— CONTRACTS  UNDER  SEAL  AND 

CONTRACTS  OF  RECORD. 


27.  Classification  of  Contracts 47-49 

28.  Contracts  of  Record 49-50 

29.  Contracts  under  Seal   51 

30-32.  How  Contracts  under  Seal  are  Made 51-57 

33.  Characteristics  of  Contract  under  Seal 57-60 

34,  Necessity  for  Contract  under  Seal 61 

Claek  Conx.  (2d  Ed.)  (yil) 


VIU 


TABLE  OF   CONTENTS. 


CHAPTER  IV. 

CONTRACTS  REQUIRED  TO  BE  IN  WRITING— STATUTE  OF  FRAUDS. 

Section  Page 

35-36.     In  General  of  Requirement  of  Writing 62-64 

37.  Statute  of  Frauds— In  General 64-65 

38.  Contracts  within  Section  4 65-66 

39.  Promise  by  Executor  or  Administrator 66 

40.  Promise  to  Answer  for  Debt,  Default,  or  Miscar- 

riage of  Another 66-72 

41.  Agreement  In  Consideration  of  Marriage 72-73 

42.  Contract  or  Sale  of  Lands 73-77 

43.  Agreement  not  to  be  Performed  within  one  Year. . .  77-82 

44-49.                    Form  Required 82-91 

50-51.                    Effect  of  Noncompliance  91-97 

52-54.            Contracts  within  Section  17 97-98 

55.  What  are  goods,  wares,  and  merchandises 98-101 

56.  Acceptance  and  Receipt 101-103 

57-58.                    Earnest  and  Part  Payment 104 

59.  Form  Required 104-105 

60.  Effect  of  Noncompliance 105 


CHAPTER  V. 

CONSIDERATION. 

61-62.     Consideration   Defined 106-109 

63-64.     Necessity  for  Consideration,  and  Presumption 110-112 

65-66.     Adequacy  of  Consideration 112-116 

67.     Sufficiency  or  Reality  of  Consideration 116-117 

68-70.             Mutual   Promises— Mutuality 117-121 

71-73.            Forbearance  to  Exercise  a  Right 121-125 

74r-76.            Doing  What  One  is  Bound  to  Do 126-133 

77-78.            Impossible  and  Vague  Promises 134-135 

79.  Legality  of  Consideration 136 

80.  Consideration  in  Respect  of  Time — Past  Consideration 136-142 


CHAPTER  VI. 


CAPACITY  OF  PARTIES. 

81.     In   General 143-144 

82-83.     Political  Status— States  and  United  States 144^145 

84.            Foreign  States  and  Sovereigns 146 

85-^8.             Aliens    146-148 

89.  Convicts    148-149 

90.  Professional   Status 149 

91-94.     Infants— In  General 149-154 

95-97.           Liability  for  Necessaries 155-160 


TABLE   OF   CONTENTS.  IX 

Section  Pago 

98.  Ratification  and  Avolrlance 160-162 

9&-101.  Who  may  Avoid  Contract 162-163 

102-104.  Time  of  Avoidance 164r-166 

105-107.  What  Amounts  to  Ratification 166-169 

108.  What  Amounts  to  Disaffirmance 170 

109.  Extent  of  Ratification  or  Disaffirmance 171 

110-111.  Return  of  Consideration  171-174 

112-114.  Effect  of  Ratification  and  Disaffirmance 175-176 

115-116.  Torts  in  Connection  with  Contracts 176-178 

117.     Insane  Persons — In  General 178-184 

118-121.  Ratification  and  Avoidance 184-186 

122-123.     Drunken  Persons 186-188 

124.     Married  Women 188-191 

125-128.    Corporations  191-194 


CHAPTER  VII. 

REALITY  OF  CONSENT. 

129.  In  General 195-196 

130-131.  Mistake  196-207 

132-134.  Effect— Remedies   207-208 

135.  Misrepresentation   208 

136-138.  Effect    209-219 

139.  Fraud.   220-234 

140-141.  Effect— Remedies  234-239 

142-144.  Duress  240-246 

145-146.  Undue  Influence 246-253 


CHAPTER  Vni. 


LEGALITY  OF  OBJECT. 

147.  In  General   254-255 

148.  Classification  of  Unlawful  Agreements 255 

149.  Agreements  in  Violation  of  Positive  Law 255-256 

150.  Breach  of  Rules  of  Common  Law 256-259 

151.  Breach  of  Statute — Constitutional  Law 259-260 

152.  Prohibition  by  Statute 260-263 

153.  Particular  Agreements  in  Breach  of  Statute 263-281 

154-155.     Agreements  Contrary  to  Public  Policy 281 

156.  Agreements  Tending  to  Injure  the  Public  Service 282-290 

157.  Nonofficial   Corruption 290-291 

158-160.  Perversion  or  Obstruction  of  Justice 292-296 

161.  Encouragement  of  Litigation — Champerty  and  Mainte- 

nance    296-300 

162.  Agreements  of  Immoral  Tendency 300-301 

163.  Agreements  Tending  to  Fraud  and  Breach  of  Trust 301-302 

164.  Agreements  in  Derogation  of  the  Marriage  Relation ....  302-,304 

165.  Agreements  in  Derogation  of  Parental  Relation 305 

166-169.  Agreements  in  Restraint  of  Trade 305-312 


Section 

170-172. 

173-175. 

176, 

177-178. 

179-181. 

182. 

183-185. 

H  186. 

i-;187. 

a." 


TABLE  OF   CONTENTS. 

Page 

Unlawful  Combinations — Monopolies,  Trusts,  etc 312-318 

Exempting  from  Liability  for  Negligence 318-321 

Effect  of  Illegality — Agreements  Partly  Illegal 321-325 

Object  Unlawful  but  Intention  Innocent 325-326 

Object  Innocent  but  Intention  Unlawful 327-332 

Promises  to  Pay  Money  Due  on  Illegal  Transactions. ...  332-335 

Relief  of  Party  to  Unlawful  Agreement 336-342 

Conflict  of  Laws— In  Space 342-346 

In  Time  342-346 


CHAPTER  IX. 


OPERATION  OF  CONTRACT. 

188.     Limits  of  Contractual  Relation— In  General 347-349 

189-190.             Imposing  Liability  on  Third  Persons 349-350 

191-192.             Conferring  Rights  on  Third  Persons 351-359 

193.  Assignment  of  Contracts — In  General 359 

194.  Assignment  of  Liabilities  by  Act  of  Parties 360-361 

195-197.            Assignment  of  Rights  by  Act  of  Parties 361-372 

198.  Assig' ment  by  Operation  of  Law 372 

199.  On  Transfer  of  Interests  in  Land 372-376 

200.  On  Marriage -. 377 

201.  On  Death 377-378 

202.  Joint  and  Several  Contracts— In  General 379 

203-204.            Joint  Contracts 379-382 

205-206.            Several  Contracts 383 

207.  Contracts  both  Joint  and  Several 384 

208.  Contribution  between  Joint  Debtors 384-385 


CHAPTER  X. 

INTERPRETATION  OF  CONTRACT. 

209-213.  Rules  Relating  to  Evidence— In  General— Parol  Evidence..  386-388 

214^215.  Proof  of  Document 388-390 

216.  Evidence  as  to  Fact  of  Agreement 390-392 

217.  Evidence  as  to  Terms  of  Contract 392-401 

218-219.     Rules  of  Construction— General  Rules 402-408 

220.  Rules  as  to  Time 408-410 

221-222.  Rules  as  to  Penalties  and  Liquidated  Damages 411^14 

223.  Joint  and  Several  Contracts 415^16 


CHAPTER  XI. 

DISCHARGE  OF  CONTRACT. 

224.     In  General 417 

225-226.     By  Agreement— In  General 418 

227-228.             Waiver,  Cancellation,  or  Rescission 418-419 

229-230.            Substituted   Contract 420-424 


TABLE  OF   CONTENTS. 


XI 


Section  Page 

231.  Form  of  Discharge  by  New  Agreement 424-427 

232.  Conditions  Subsequent 427-430 

233.  By  Performance — In  General 430-434 

234.  Payment   434^39 

235.  Tender    440-442 

236-237.     By  Breacti— In  General 443 

238.  Forms  of  Discharge  by  Breach 443 

239-240.  Renunciation  of  Contract 444—^  t7 

241.  Impossibility  Created  by  Party 448—    9 

242.  Breach  by  Failure  of  Performance 440-41.  > 

243-244.  Independent   Promises 450-458 

245-249.  Conditional  Promises 458-471 

250.  By  Impossibility  of  Performance 472-477 

251.  By  Operation  of  Law 478 

252.  Merger    478-479 

253.  Alteration  of  Written  Instrument 479-484 

254.  Proceedings  in  Bankruptcy 484 

255.  Remedies  on  Breach  of  Contract 484-485 

256-259.  Damages  48-5-488 

260.  Specific   Performance 489-491 

261.  Discharge  of  Right  of  Action 491 

262.  By  the  Consent  of  the  Parties 491-493 

263.  By   Judgment 493-494 

264-265.  By  Lapse  of  Time 495-496 

CHAPTER  Xn. 


266. 

267. 
268-269. 

270. 

271. 
272-273. 

274. 

275. 

276. 
277. 
278. 


AGENCY. 

Creation  of  the  Relation — Capacity  of  Parties 497 

How  the  Relation  may  Arise 498-499 

Form  of  Authority 500-502 

Agency  by  Estoppel 500-502 

Ratification 502-507 

Effect  of  Relation — Rights  and  Liabilities  of  Principal  and 

Agent  Inter  Se  507-512 

Rights   and   Liabilities   as   to   Third   Persons — Named 

Principal  512-519 

Name  of  Principal  Undisclosed 519-521 

Existence  of  Principal  Undisclosed 521-523 

Fraud  of  Agent 523-524 

Determination  of  the  Relation 524-529 


CHAPTER  Xm. 

QUASI  CONTRACT. 

279.  In  General 530-533 

280.  Money  Paid  for  the  Use  of  Another 533-536 

281.  Money  Received  for  the  Use  of  Another 536-547 

282.  Recovery  for  Benefits  Conferred 547-553 


ft^,  ' 


,  yiO 


HANDBOOK 


OF    THE 


LAW  OF  CONTRACTS. 


SECOND     EDITION. 


CHAPTEH  I. 

DEFINITION.  NATURE,  AND  REQUISITES  OF  CONTRACT  IN  GENERAL. 

1-2.  Contract  Defined. 

3.  Agreement. 

4.  Obligation. 

5.  Concurrence  of  Agreement  and  Obligation. 

6.  Promise. 

7-9.     "Void,"   "Voidable,"   and  "Unenforceable"   Agreements. 
10.     Essentials  of  Contract- 

CONTRACT  DEFINED— BROADEST  SENSE. 

1.  A  contract,  in  its  broadest  sense,  is  an  agreement  ^vliereby  one  or 
more  of  the  parties  acquires  a  right,  in  rem  or  in  personam, 
in  relation  to  some  person,  thing,  act,  or  forbearance.  It  may 
be,  in  its  inception: 

(a)  Executory;    that  is,  where  an  obligation  is  assumed  by  one  or 

both  parties  to  do  or  forbear  from  doing  some  act.  The  rights 
acquired  are  rights  in  personam. 

(b)  Executed;   that  is,  where  everything  is  done  at  the  time  of  agree- 

ment, and  no  obligation  is  assumed,  as  in  the  case  of  a  convey- 
ance of  land  fvithout  covenants,  or  a  sale  and  immediate  deliv- 
ery of  goods  for  cash  and  xvithout  warranty.*  Executory  con- 
tracts Ttrhen  fully  performed  are  also  said  to  be  executed. 

*  The  propriety  of  calling  sucli  an  agreement  a  contract  lias  been  questioned. 
Post,  p.  7,  note  12. 

CLAKa  CoNT.  (2d  Ed.) — 1 


DEFINITION,  NATURE,  AND   REQUISITES   OF   CONTRACT.        (Ch.  1 


SAME— PBOPEB  SENSE. 

3.  A  oontract  in  its  narrovirer,  and  more  proper,  sense  is  an  executory 
contract.  It  is  tlie  result  of  tlie  concurrence  of  agreement  and 
obligation,  and  may  be  defined  as  an  agreement  enforceable  at 
laiv,  made  betxireen  tiiro  or  more  persons,  by  wbicli  rights  are 
acquired  by  one  or  more  to  acts  or  forbearances  on  the  part 
of  the  other  or  others.  ^ 

When  we  speak  of  contracts  we  generally  mean  executory  con- 
tracts, and  it  is  of  this  kind  of  contract  principally  that  this  work  is 
to  treat.  A  contract  in  this  sense  results  from  the  combination  of  the 
two  ideas  of  "agreement"  and  "obligation."  It  is  that  form  of  agree- 
ment, or  meeting  of  minds,  which  directly  contemplates  and  creates 
an  obligation;  and  the  contractual  obligation  is  that  form  of  obliga- 
tion which  springs  directly  from  agreement.  It  is  necessary,  there- 
fore, to  understand  clearly  what  is  meant  by  the  terms  "agreement" 
and  "obligation,"  and  how  they  may  or  may  not  concur  so  as  to  create 
a  contract. 


AGREEMENT. 

3.  Agreement  is  the  expression  by  t^wo  or  more  persons,  either  by 
\xroTds  or  by  conduct,  of  a  common  intention  to  affect  the  legal 
relations  of  those  persons. ^  There  must  be  a  meeting  of  tw^o 
minds  in  one  and  the  same  intention. 

From  the  very  nature  of  agreement  the  first  essential  is  the  consent 
of  the  parties.     There  must  be  a  meeting  of  two  minds  in  one  and  the 

1  The  following  are  some  of  the  definitions  given  in  the  books: 

"An  agi-eement  enforceable  at  law,  made  between  two  or  more  persons,  by 
which  rights  are  acquired  by  one  or  more  to  acts  or  forbearances  on  the  part 
of  the  other  or  others."    Anson,  Cont.  (Sth  Ed.)  9. 

"Every  agreement  and  promise  enforceable  by  law  is  a  contract."  Pol. 
Cont  1. 

"An  agreement,  upon  sufficient  consideration,  to  do  or  not  to  do  a  particular 
thing."   Bl.  Comm.  442;   2  Kent,  Comm.  449. 

"An  agreement  between  two  or  more  parties  for  the  doing  or  the  not  doing 
of  some  particular  thing."   1  Pars.  Cont.  6. 

"A  contract  or  agreement  not  under  seal  may  be  defined  to  be  an  engage- 
ment entered  into  between  two  or  more  persons,  whereby,  in  consideration 
of  something  done  or  to  be  done  by  the  party  or  parties  on  one  side,  the  party 
or  parties  on  the  other  promise  to  do  or  omit  to  do  some  act."   Chit.  Cont.  7. 

"A  contract  is  a  promise  from  one  or  more  persons  to  another  or  otliers, 
either  made  in  fact  or  created  by  law,  to  do  or  refrain  from  some  lawful 
thing ;  being  also  under  the  seal  of  the  promisor,  or  being  reduced  to  a  judi- 
cial record,  or  being  accompanied  by  a  valid  consideration,  or  being  executed, 
and  not  being  in  a  form  forbidden  or  declared  inadequate  by  law."  Bish. 
Cont.  §  22. 

2  See  Anson,  Cont.  (4th  Ed.)  3.     "(1)  An  agreement  is  an  act  in  the  law. 


§  3)  AGREEMENT.  3 

same  intention.     In  the  absence  of  this  element  there  can  be  no  agree- 
ment, and,  therefore,  no  contract. 

Two  Parties  Necessary. 

It  is  manifest  that  at  least  two  parties  are  necessary.  There  may 
be  more  than  two,  but  there  cannot  be  less.  It  is  therefore  impossi- 
ble for  a  man  to  make  an  agreement  or  contract  with  himself.*  ' 

Distinct  Common  Intention. 

It  is  also  essential  that  there  be  a  distinct  intention,  and  an  intention 
which  is  common  to  both  parties.  If  there  is  doubt  or  difference, 
there  is  no  meeting  of  minds,  and  hence  no  agreement.  If  a  person, 
when  asked  whether  he  will-  do  a  certain  thing,  says,  "Very  possibly," 
there  is  doubt,  and  no  agreement  is  reached ;  and  if  he  says  he  will  do 
something  else,  there  is  a  difference,  and  therefore  no  agreement 

Communication  of  Intention. 

Agreement  further  imports  that  there  shall  be  a  mutual  communica- 
tion between  the  parties  of  their  intentions  to  agree,  for  without  this 
neither  could  know  the  state  of  the  other's  mind.  The  law,  therefore, 
judges  of  an  agreement  between  two  persons  exclusively  from  those 
expressions  of  their  intentions  which  are  communicated  between  them. 
Mere  uncommunicated  intention,  though  common  to  both  parties,  can- 
not constitute  agreement.  If  a  person  asks  another  if  he  will  do  some- 
thing, and  the  latter  makes  no  reply,  there  is  no  agreement,  even  though 
he  may  intend  to  do  it.  A  secret  acceptance  of  a  proposal  cannot  con- 
stitute agreement;  nor,  it  is  said,  can  agreement  result  where  the  in- 
tention of  a  party  is  communicated,  not  to  the  other  party,  but  to  a 
third  person.*  As  we  shall  see,  communication  maybe  by  conduct  as 
well  as  by  words. 

whereby  tv\-o  or  more  persons  declare  theii*  consent  as  to  any  act  or  thing  to 
be  done  or  forborne  by  some  or  one  of  those  persons  for  the  use  of  the  others  or 
other  of  them.  (2)  Such  declaration  may  consist  of  (a)  the  conciu^rence  of  the 
parties  in  a  spoken  or  Avi'itten  form  of  words  as  expressing  their  common  in- 
tention, or  (b)  a  proposal  made  by  some  or  one  of  them,  and  accepted  by  the 
others  or  other  of  them."    Pol.  Cont  1. 

3  Another  reason  Avhy  a  man  cannot  enter  into  a  contract  with  himself  is 
because  he  cannot  be  under  a  legal  obligation  to  himself.    Post,  p.  5. 

*  Leake,  Cont.  8.  Intention  may  be  communicated  to  the  agent  of  a  party, 
but  this  is  equivalent  to  communication  to  the  party  himself.  "In  the  case  in 
hand,"  it  was  said,  "the  plaintiff  determined  to  accept  But  a  mental  deter- 
mination not  indicated  by  speech,  or  put  in  course  of  indication  by  act  to  the 
other  party,  is  not  an  acceptance  which  will  bind  the  other.  Nor  does  an  act 
which  in  itself  is  no  indication  of  an  acceptance  become  such  because  accom- 
panied by  an  unevinced  mental  determination."  WHITE  v.  CORLIES,  46  N. 
Y.  467. 


4  DEFINITION,  NATURE,  AND   REQUISITES   OF   CONTRACT.        (Cll.  1 

Reference  to  Legal  Relations. 

An  agreement,  to  be  recognized  as  such  by  the  law,  so  as  to  consti- 
tute a  contract,  must  be  "an  act  in  the  law ;"  ^  that  is,  it  must  be,  on 
the  face  of  the  matter,  capable  of  having  legal  effects ;  and  therefore, 
the  intention  of  the  parties  must  refer  to  legal  relations,  so  that  the 
courts,  which  can  only  deal  with  legal  relations,  may  tal<e  cognizance 
of  it.  It  must  have  reference  to  the  assumption  of  legal  rights  and 
duties,  ?s  opposed  to  engagements  of  a  social  character  and  engage- 
ments of  honor.  If  a  person  agrees  to  sell  another  a  horse,  the  agree- 
ment refers  to  legal  relations,  and  may  result  in  contract;  but,  if  a 
person  agrees  to  go  to  another's  house  to  dine,  the  intention  refers 
merely  to  a  social  engagement,  and  no  contract  results.  Legal  con- 
sequences are  not  contemplated.^ 

Consequences  must  Affect  the  Parties. 

In  order  that  agreement  may  result  in  obligation,  so  as  to  constitute 
contract,  the  consequences  of  the  agreement  must  affect  the  parties 
themselves ;  otherwise  the  verdict  of  a  jury,  which  is  an  agreement 
between  the  jurors,  would  satisfy  the  requirements.^ 

6  Pol.  Cont.  2. 

8  It  has  been  said  that  we  may  accept  as  a  test  of  this  question  that  the  in- 
tention must  relate  to  something  which  is  of  some  value  in  the  eye  of  the  law, 
something  which  can  be  assessed  at  a  money  value.  Anson,  Cont.  2.  It  is 
true  that  the  matter  of  an  agreement  must  be  reducible  to  a  money  value, 
to  be  enforceable;  but  this  necessity  does  not  spring  from  the  nature  of  agree- 
ment. See  post,  p.  6.  Furthermore,  there  may  be  agreements  which  will 
meet  this  requirement,  and  yet  will  not  result  in  contract,  because  of  the 
intention  of  the  parties;  that  is  to  say,  because  of  failure  to  refer  to  legal 
relations.  A  man  who  invites  another  to  dine  with  him,  or  perform  any  other 
social  function,  goes  to  expense  in  making  preparations,  and  if  the  engage- 
ment is  broken,  there  is  a  loss  which  may  be  assessed  at  a  money  value,  but 
this  does  not  make  the  agi-eement  a  contract.  The  reason  is  that  the  parties 
do  not  contemplate  legal  relations  and  consequences.  The  engagement  is 
merely  a  social  one.  The  fact  that  the  matter  contemplated  is  reducible  to  a 
money  value  does  not  make  the  agreement  a  contract,  unless,  in  addition  to 
this,  the  parties  intend  to  affect  their  legal  relations.  Pol.  Cont.  2,  note  (a). 
See  Earle  v.  Angell,  157  Mass.  294,  32  N.  E.  164. 

7  If  a  fund  is  held  by  the  trustees  under  a  will,  to  be  paid  over  to  the  tes- 
tator's daughter  on  her  marriage  with  their  consent,  and  they  give  their 
consent  to  her  marrying  J.  S.,  this  declaration  of  consent  affects  the  duties  of 
the  trustees  themselves,  for  it  is  one  of  the  elements  determining  their  duty 
to  pay  over  the  fund.  Still  it  is  not  an  agreement,  for  it  concerns  no  duty  to 
be  performed  by  any  one  of  the  trustees  towards  any  other  of  them.  There 
is  a  common  duty  to  the  beneficiary,  but  no  mutual  obligation."  Pol.  Cont  3. 


4)  OBLIGATION. 


OBLIGATION. 

4.  Oblig:ation  is  a  control  exercisable  by  definite  persons  over  defijiite 
persons  for  the  purpose  of  definite  acts  or  forbearances  re- 
ducible to  a  money  value. ^ 

Obligation  is  a  legal  bond  or  tie  whereby  constraint  is  laid  upon  a 
person  or  group  of  persons  to  act  or  forbear  on  behalf  of  another  per- 
son or  group.  Since  there  can  be  no  contract  without  obligation,  every 
element  essential  to  the  creation  of  an  obHgation  is  essential  to  the  cre- 
ation of  a  contract. 

Two  Parties  Necessary. 

From  the  very  nature  of  things,  two  persons  are  necessary.  There 
may  be  more  than  two,  but  there  cannot  be  less.  A  man  cannot  be  un- 
der a  legal  obligation  to  himself,  or  even  to  himself  in  conjunction  with 
others.  In  an  English  case,  where  a  man  had  borrowed  money  from 
a  fund  in  which  he  and  others  were  jointly  interested,  and  covenanted 
to  repay  the  money  to  the  joint  account,  it  was  held  that  he  could  not 
be  sued  upon  his  covenant.  "The  covenant,  to  my  mind,  is  senseless," 
said  Pollock,  C.  B.  'T  do  not  know  what  is  meant,  in  point  of  law, 
by  a  man  paying  himself."  ^  And  in  a  Massachusetts  case  it  was  said 
that  "it  is  a  first  principle  that,  in  whatever  different  capacities  a  per- 
son may  act,  he  never  can  contract  with  himself,  nor  maintain  an  ac- 
tion against  himself.  He  can  in  no  form  be  both  obligor  and  obli- 
gee" ^° 

The  Parties  Must  he  Definite. 

The  parties  to  an  obligation  must  be  definite,  both  those  having  the 
right  to  exercise  control  and  those  bound.  A  man  cannot  be  under 
an  obligation  to  the  entire  community.  His  liabilities  to  the  political 
society  of  which  he  is  a  member  are  matters  of  public  or  criminal  law. 
Nor  can  the  whole  community  be  under  an  obligation  to  him.  The 
correlative  right  on  his  part  would  be  a  right  in  rem,  and  would  con- 
stitute property,  as  opposed  to  obligation.  Whether  the  right  is  to 
personal  freedom  or  security,  to  character,  or  to  those  more  material  ob- 
jects which  we  commonly  call  property,  it  imposes  a  corresponding 
duty  on  all  to  forbear  from  molesting  the  right.  Such  a  right  is  a 
right  in  rem.     It  is  of  the  essence  of  obligation  that  the  liabilities  im- 

8  Anson,  Cont.  (4th  Ed.)  7,  "By  'obligation'  we  mean  the  relation  that  ex- 
ists between  two  persons,  of  whom  one  has  a  private  and  peculiar  right  (that 
is,  not  a  merely  public  or  official  right,  or  a  i-ight  incident  to  ownership  or  a 
permanent  family  relation)  to  control  the  other's  actions  by  calling  upon  him 
to  do  or  forbear  some  particular  thing."  Pol.  Cont.  3. 

9  Faulkner  v.  Lowe,  2  Exch.  595. 

10  Eastman  v.  Wright,  G  Pick.  (Mass.)  31G.  And  see  Allin  v.  Shadbm'ne's 
Ex'r,  1  Dana  (Ky.)  68,  25  Am.  Dec.  121. 


6  DEFINITION,  NATURE,  AND   REQUISITES   OF   CONTRACT.         (Gh.  1 

posed  are  imposed  on  definite  persons,  and  are  themselves  definite.  The 
rights  which  it  creates  are  rights  in  personam. ^^  There  are  apparent 
exceptions  to  this  rule  in  the  case  of  contracts  made  by  and  with  cities 
and  other  municipal  corporations  and  with  the  state.  The  state  repre- 
sents the  public,  and  such  is  also  the  case  with  municipal  corporations, 
but  this  fact  does  not  prevent  contracts  with  them.  A  municipal  cor- 
poration or  the  state  is  a  definite  party,  distinct  from  the  members  of 
the  community. 

The  Rights  and  Liabilitjes  Must  be  Definite. 

To  constitute  an  obligation  enforceable  in  law,  the  rights  and  lia- 
bilities given  and  imposed  must  be  definite.  In  other  words,  it  must 
relate  to  definite  acts  and  forbearances.  The  freedom  of  the  person 
bound  by  an  obligation  is  not  curtailed  generally,  but  is  limited  in  ref- 
erence to  some  particular  act  or  series  or  class  of  acts.  If  the  thing 
to  be  done  or  forborne  is  so  indefinite  or  uncertain  that  the  court  can- 
not say  what  was  agreed  upon,  it  cannot  enforce  the  agreement.  An 
agreement  not  enforceable  creates  no  obligation,  and  therefore  cannot 
result  in  contract. 

The  Thing  to  be  Done  or  Forborne  must  be  Reducible  to  a  Money 
Value. 
The  matter  of  the  obligation — that  is,  the  thing  to  be  done  or  for- 
borne— must  possess,  or  must  be  reducible  to,  a  pecuniary  value.  It 
must  have  some  ascertainable  value,  in  order  to  distinguish  legal  from 
moral  and  social  relations.  Gratitude  for  a  past  kindness  cannot  be 
measured  by  any  standard  of  value,  nor  can  annoyance  and  disappoint- 
ment, caused  by  the  breach  of  a  social  engagement.  Courts  of  law 
can  only  deal  with  matters  to  which  the  parties  have  attached  an  im- 
portance estimable  by  a  standard  of  value  of  which  the  courts  may 
take  cognizance. 

COXCURBENCE  OF  AGREEMENT  AND  OBLIGATION. 

5.  All  agri*eemeiit  resulting  in  contract  is  that  form  of  agreement 
whicli  directly  contemplates  and  creates  an  obligation;  and 
the  contractual  obligation  is  that  form  of  obligation  wbicb 
springs  directly  from  agreement. 

Agreement  Broader  Term  than  Contract. 

"Agreement"  is  a  broader  term  than  "contract,"  and  includes  acts 
in  the  law  of  two  kinds  besides  those  which  we  ordinarily  term  con- 
tracts : 

(i)  An  agreement,  for  instance,  may  not  create  an  obligation,  and 
therefore,  in  reason,  may  not  result  in  a  contract,  because  its  effect  is 

11  Absoq,  ConL  (4tli  Ed.)  5. 


§  5)  CONCURRENCE   OF  AGREEMENT  AND   OBLIGATION.  7 

concluded  as  soon  as  the  parties  have  expressed  their  common  assent. 
Such  are  conveyances  of  land  without  covenants^  gifts,  and  sales  of 
chattels  for  cash,  with  immediate  delivery,  and  without  warranty.  The 
agreement  of  the  parties  effects  at  once  a  transfer  of  rights  in  rem, 
and  leaves  no  obligation  subsisting  between  them.  Such  agreements 
are  called  "executed  contracts,"  but  they  create  no  outstanding  con- 
tractual obligation,  and  it  is  at  least  questionable  whether  they  can 
properly  be  termed  contracts.^ ^  It  is  otherwise  if  the  conveyance  is 
with  covenants  annexed,  or  if  the  sale  is  on  future  delivery,  or  on 
credit,  or  with  a  warranty. 

(2)  Again,  an  agreement  may  create  obligations  only  incidentally  or 
remotely,  and  therefore  not  constitute  a  contract ;  the  essence  of  con- 
tract being  in  the  fact  that  the, direct  purpose  of  the  agreement  is  to 
create  an  obligation.  Such  agreements  have  the  characteristic  just  al- 
luded to  of  effecting  their  main  object  immediately  upon  the  expres- 
sion of  the  intention  of  the  parties,  but  they  differ  from  simple  con- 
veyances and  gifts,  not  only  in  creating  outstanding  obligations  be- 
tween the  parties,  but  sometimes  in  providing  for  the  coming  into  ex- 
istence of  other  obligations,  and  those  not  between  the  original  par- 
ties to  the  agreement.  Marriage,  for  instance,  sometimes  erroneously 
called  a  contract,  effects  a  change  of  status  from  the  moment  the  con- 
sent of  the  parties  is  expressed  before  a  competent  authority.  At  the 
same  time  it  creates  obligations  between  the  parties  which  are  inci- 
dental to  the  transaction,  and  to  the  immediate  objects  of  the  expres- 
sion of  consent  or  agreement.  So,  also,  a  settlement  of  property  in 
trust  for  persons  unborn  effects  much  more  than  the  mere  conveyance 
of  a  legal  estate  to  the  trustee.  It  imposes  on  him  incidental  obliga- 
tions, some  of  which  may  not  come  into  existence  for  a  long  time. 
It  creates  possibilities  of  obligation  between  him  and  persons  who  are 
not  yet  in  existence.  These  obligations  are  the  result  of  agreement, 
but  they  are  not  contract. ^^ 

12  There  is  the  highest  autliority  for  speaking  of  conveyances  of  land  with- 
out covenants,  gifts,  and  sales  of  goods  for  cash,  with  immediate  deliveiy, 
and  without  warranty,  as  executed  contracts.  2  Bl.  Comm.  443;  1  Story, 
Cont.  (4th  Ed.)  §  22;  FLETCHER  v.  PECK,  6  Cranch,  87,  3  L.  Ed.  162.  The 
proprietj%  however,  of  calling  such  agi'eements  contracts  has,  with  reason, 
been  questioned.  Anson,  Cont  3.  It  is  of  the  essence  of  contract,  as  a  legal 
conception,  that  it  shall  contemplate  and  create  a  right  in  personam;  that  it 
shall  impose  an  obligation  on  one  of  the  parties  to  do  or  forbear  from  doing 
some  act.  An  agreement  by  which  a  person  binds  himself  to  convey  land 
would  therefore  be  a  contract;  but  how  can  a  conveyance  be  called  a  contract? 
It  creates  no  obligation,  but,  at  the  very  moment  the  parties  agree,  the  agi*ee- 
ment  is  carried  out.  To  the  effect  that  an  executed  gift  is  not  a  contract,  see 
Wheeler  v.  Glasgow,  97  Ala.  700,  11  South.  758. 

13  Anson,  Cont.  (4th  Ed.)  3;  Wade  v.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep. 
2r)0;  Ditson  v.  Ditson,  4  R.  I.  87;  Maynard  v.  Hill,  125  U.  S.  100,  8  Sup.  Ct. 
723,  31  L.  Ed,  654;   Watkius  v.  Watkius,  135  Mass.  83. 


8  DEFINITION,  NATURE,  AND   REQUISITES   OP   CONTRACT.        (Cll.  1 

t 

Sources  of  Obligation^* — Directly  from  Agreement. 

Obligation  may  arise  directly  from  agreement.  Here  we  find  that 
form  of  agreement  which  constitutes  contract.  An  offer  is  made  by 
one  person  and  accepted  by  another,  so  that  one  consents  to  intend, 
and  the  other  to  expect,  the  same  thing;  and  the  result  of  this  agree- 
ment is  a  legal  tie,  binding  the  parties  to  one  another  in  respect  to 
some  future  act  or  forbearance. 

Same — Delict  or  Tort. 

Obligation  may  arise  from  delict  or  tort.  This  occurs  where  a  pri- 
mary right  to  forbearance  has  been  violated;  where,  for  instance,  a 
right  to  property,  to  security,  or  to  character  has  been  violated  by 
trespass,  assault,  or  defamation.  The  wrongdoer  is  bound  to  pay  to 
the  injured  party  whatever  damages  he  has  sustained.  Such  an  obli- 
gation is  not  created  by  the  free  will  of  the  parties,  or  by  agreement, 
but  springs  up  immediately  upon  the  occurrence  of  the  wrongful  act. 
The  person  injured  has  a  cause  of  action  which  is  said  to  arise  ex 
delicto,  as  distinguished  from  such  as  arise  ex  contractu.^" 

Same — Breach  of  Contract. 

Obligation  may  arise  from  breach  of  contract.  While  one  person  is 
under  promise  to  another,  the  promisee  has  a  right  against  the  prom- 
isor to  performance  of  the  promise  when  performance  becomes  due, 
■  and  to  the  maintenance  up  to  that  time  of  the  contractual  relation. 
But,  if  the  promisor  breaks  his  promise,  the  promisee's  right  to  per- 
formance has  been  violated,  and,  even  if  the  contract  is  not  discharged, 
a  new  obligation  springs  up, — a  right  of  action  for  damages,  similar 
to  that  which  arises  upon  a  delict  or  tort.  The  cause  of  action  results 
from  the  breach  of  contract,  and  is  said  to  arise  ex  contractu. 

Same — Quasi  Contract. 

There  are  certain  obligations  which  arise  neither  from  tort  nor  from 
contract,  but  which  are  imposed  by  law  without  assent  of  the  party 
bound.  These  obligations  are  not  contracts,  for  there  is  no  agree- 
ment ;  but  they  are  clothed  with  the  semblance  of  contract  for  the  pur- 
pose of  remedy,  and  are  described  by  the  term  quasi  contract.^®  Obli- 
gation may  arise  from  the  judgment  of  a  court  of  competent  jurisdic- 
tion ordering  something  to  be  done  or  forborne  by  one  party  in  re- 
spect of  another.  This  kind  of  obligation  is  called  a  "contract  of  rec- 
ord." It  may  arise  from  entry  of  judgment  by  consent  of  the  par- 
'ItTes,  in  which  event  the  element  of  agreement  is  present;  but,  on  the 
other  hand,  it  may  arise  against  the  will  of  the  party  bound  thereby, 
in  which  case  there  is  no  element  of  agreement,  and  therefore  no  true 
contract.     Such  an  obligation  is  quasi  contractual.^^ 

14  Anson,  Ck)nt.  (4tli  Ed.)  7.  le  Post,  p.  530. 

i'>  Leake,  Gout.  3.  i^  Post,  p.  49. 


§  6)  PROMISE.  9 

Again,  a  quasi  contractual  obligation  may  arise  by  the  acts  of  the 
parties.  A  person  pays  something  which  another  ought  to  pay,  or  re- 
ceives something  which  another  ought  to  receive,  and  the  law  imposes 
on  him  the  duty  to  make  good  to  the  other  party  the  advantage  to 
which  the  other  is  entitled.  The  term  "implied  contract"  is  frequently 
applied  to  obligations  of  this  class.  Its  use  is  objectionable,  because 
the  same  term  is  frequently  applied  to  contracts  in  which  the  agreement 
of  the  parties  is  evidenced  by  conduct,  and  which  are  hence  called 
"implied  contracts,"  in  distinction  to  contracts  in  which  the  agreement 
is  evidenced  by  words,  and  which  are  said  to  be  express.^ ^ 

Same — Indirectly  from  Agreement — Marriage — Trusts. 

Finally,  obligation  may  spring  from  agreement,  and  yet  be  distin- 
guishable from  contract.  As  explained  in  speaking  of  agreement,  this 
is  the  case  with  obligations  incidental  to  such  acts  as  marriage  and  the 
creation  of  a  trust  Contractual  obligations  may  arise  incidentally  to 
an  agreement  which  has  for  its  direct  object  the  transfer  of  property. 
In  the  case  of  a  conveyance  of  land  with  covenants  annexed,  or  the 
sale  of  a  chattel  with  a  warranty,  the  obligation  hangs  loosely  to  the 
conveyance  or  sale,  and  is  so  easily  distinguishable  that  it  may  be  dealt 
witli  as  a  contract.  But  in  cases  of  trust  or  marriage  the  agreement 
is  far-reaching  in  its  objects,  and  the  obligations  incidental  to  it  are 
either  contingent,  or  at  any  rate  remote  from  its  main  purpose  or  im-' 
mediate  operation.  To  create  an  obligation  is  the  one  object  which  the 
parties  have  in  view  wherinEhe^'Tfiter  into  that  form  o£  agreement  which 
is  called  contract.  \. 

6.  A  promise  is  th.e  commnnication  by  a  person  of  an  intention  and 
Tsrillingness  to  be  bound  to  do  or  to  forbear  from  doing  some- 
tbing  at  tbe  request  or  for  tbe  use  of  anotber,  'wben,  but  not 
before,  tbat  declaration  bas  become  binding  by  its  acceptance 
by  tbe  promisee  so  as  to  create  an  obligation,  lo  A  promissory 
expression  before  acceptance  is  mei'ely  an  offer  of  a  promise. 

We  are  in  the  habit  of  considering  as  the  essential  feature  of  con- 
tract a  promise  by  one  or  more  parties  to  another  or  others  to  do  or 
forbear  from  doing  certain  specified  acts ;  and  many  of  the  books  use 
the  term  "promise,"  rather  than  "agreement,"  to  define  contract.  "In 
an  agreement  as  the  source  of  a  legal  contract,"  it  is  said,  "the  matter 
intended  and  agreed  imports  that  the  one  party  shall  be  bound  to  the 
other  in  some  act  or  performance,  which  the  latter  shall  have  a  legal 
right  to  enforce."  The  signification  of  an  intention  to  do  some  act, 
or  observe  some  particular  course  of  conduct,  made  by  the  one  party 

18  Tost,  p.  531.  i»  Anson,  Cont.  (4tli  Ed.)  4;  Pol.  Cout.  1. 


10  DEFINITION,  NATURE,  AND    REQUISITES   OF    CONTRACT.        (Gil.  1 


to  the  other,  and  accepted  by  J^iiTtriet^4h€~4>urpQse-.Qi_cr£ating  a  right 
tojtsaccomphshment,  is  called  a  promise.^" 

The  term  "promise"  is  used  to  signify  a  binding  promise,  as  opposed 
to  a  mere  offer  of  a  promise.  A  promissory  expression  amounting 
to  an  offer  of  a  promise  does  not  become  a  promise  until  it  becomes 
binding  by  its  acceptance  by  the  person  to  whom  it  is  made.  Before 
it  is  accepted  it  is  a  mere  offer  of  a  promise,  called  in  the  civil  law  a 
"pollicitation."  ^^  It  must  also  be  noted  that  it  is  not  every  statement 
of  intention  that  will  amount  to  an  offer  of  a  promise  which  by  accept- 
ance will  be  turned  into  a  promise.  An  offer  differs  from  a  mere 
statement  of  intention  in  that  it  imports  a  willingness  to  be  bound  to 
the  party  to  whom  it  is  made.  If  a  persons  says  to  another,  "I  intend 
to  sell  my  horse  if  I  can  get  $ioo  for  it,"  there  is  no  offer  that  can  be 
turned  into  an  agreement,  but  merely  a  declaration  of  intention.  There 
is  no  declaration  of  willingness  to  be  bound.  If,  however,  he  says,  "I 
will  sell  you  my  horse  if  you  will  give  me  $ioo  for  it,"  there  is  an 
offer,  and,  if  it  is  accepted,  there  is  a  contract,  consisting  of  mutual 
binding  promises  to  deliver  the  horse  on  the  one  side,  and  to  accept 
and  pay  for  it  on  the  other. 

Looking  at  contract,  then,  in  the  light  of  a  promise,  we  may  say 
that  there  are  three  stages  necessary  to  the  making  of  that  sort  of 
agreement  which  results  in  a  contract :  (i)  There  must  be  an  offer ; 
(2)  there  must  be  an  acceptance  of  the  offer,  resulting  in  a  promise  ; 
and  (3)  the  law  must  attach  a  binding  force  to  the  promise,  so  as  to 
invest  it  with  the  character  of  an  obligation. 

The  promise  results  from  the  agreement  of  the  parties,  and  neces- 
sarily results  from  every  agreement  which  directly  contemplates  and 
creates  an  obligation.  The  agreement  makes  the  contract,  and  the 
promise  is  merely  a  feature  of  the  contract. 


VOID,  VOIDABLE,  AND  UNENFORCEABLE  AGREEMENTS. 

7.  A  void  ag:reeiuent  is  one  that  is  entirely  destitute  of  legal  effect. 

8.  A  voidable  contract  is  one  tbiat  is  capable  of  being  affirmed  or  re- 

jected at  the  option  of  one  of  the  parties,  but  -which  is  binding 
on  the  other. 

9.  An  unenforceable   contract  is  one   that  is  valid,  but  incapable   of 

being  sued  upon  or  proven. 

We  have  seen,  and  in  dealing  with  the  formation  of  contract  we 
shall  see  more  in  detail,  that  certain  requisites  are  essential,  and,  if 
they  are  absent,  the  contract  is  said  to  be  void.  By  this  it  is  meant 
that  it  has  no  legal  effect  whatever.     Clearly,  in  such  a  case,  there  is 

20  Leake,  Cont.  13.  21  See  post,  p.  21. 


§§  ^-^)      VOID,  VOIDABLE,  AND  UNENFORCEABLE  AGREEMENTS.     11 

no  contract  at  all,  and  it  is  a  misuse  of  terms  to  speak  of  it  as  such. 
A  transaction  or  agreement  cannot  be  void  and  be  called  a  contract, 
so  it  is  more  accurate  to  say  that  the  transaction  or  agreement  is  void. 

A  voidable  contract  is  not  destitute  of  legal  effect,  but  may  be  valid 
and  binding.  It  is  a  contract  that  is  capable  of  being  affirmed  or  re- 
jected at  the  option  of  one  of  the  parties.  It  is  binding  if  he  chooses 
to  affirm  it,  and  is  of  no  effect  if  he  chooses  to  reject  it.  The  other 
party  has  no  say  in  the  matter.  Such  is  the  case,  as  we  shall  see,  with 
contracts  into  which  one  of  the  parties  has  induced  the  other  to  enter 
by  means  of  fraud.  The  latter  may  repudiate  the  contract,  or,  if  he 
sees  fit,  he  may  waive  the  fraud,  and  hold  the  former  to  his  bargain. 

It  will  seem,  at  first  thought,  that  certain  agreements  said  to  be  void 
are  not  so  in  fact.  For  instance,  as  we  shall  see,  an  agreement  may 
be  void  on  the  ground  of  mistake,  or,  in  a  few  cases,  because  of  the 
infancy  of  one  of  the  parties ;  but,  if  the  mistake  or  infancy  is  not 
pleaded  in  the  action  to  enforce  it,  the  parties  will  be  held  bound. 
Such  an  agreement,  however,  is  just  as  void  as  an  agreement  to  do 
something  which  the  law  forbids.  The  cause  of  nullity  is  latent,  but 
this  does  not  alter  the  character  of  the  transaction.  It  is  void  if  the 
defendant  chooses  to  prove  it  so.^^ 

If  the  defendant  in  these  cases  may,  at  his  option,  avoid  the  con- 
tract, or  let  it  stand,  there  would  seem  to  be  a  certain  unreality  in  the 
distinction  between  void  and  voidable  agreements;  but  this  is  not  so 
in  fact.  In  case  of  voidable  agreements  there  is  a  contract,  though 
it  is  marked  by  a  flaw ;  and  the  party  who  has  the  option  may  affirm 
it  in  spite  of  the  flaw.  Where,  however,  an  agreement  is  void,  it  falls 
to  the  ground  as  soon  as  its  nullity  becomes  apparent.  It  is  incapable 
of  affirmance.  Another  distinction  is  in  the  fact  that  in  case  of  void- 
able contracts  innocent  third  persons,  acting  in  good  faith,  may  ac- 
quire rights  thereunder,  and  tliereby  cut  off  the  right  to  avoid  it; 
but  no  such  rights  can  be  acquired  where  the  transaction  is  void.-^ 

A  contract  which  is  unenforceable  cannot  be  set  aside  at  the  option 
of  one  of  the  parties  to  it.  The  obstacles  to  its  enforcement  do  not  .  / 
touch  the  existence  of  the  contract,  but  only  set  difficulties  in  the  way 
of  action  being  "brought  or  proof  given.  The  contract  is  valid,  but 
because  of  these  obstacles  it  cannot  be  enforced.  Such  is  a  contract, 
as  we  shall  see,  which  fails  to  comply  with  some  of  the  provisions  of 
the  statute  of  frauds,  requiring  writing,  and  so  cannot  be  proved;  or 
a  contract  which  has  become  barred  by  the  statute  of  limitations.  The 
defect  in  these  contracts  is  not  irremediable.  In  the  first  it  may  be 
remedied  by  supplying  the  writing,  and  in  the  second  by  procuring  a 
proper  acknowledgment  of  the  barred  debt ;  but  it  will  be  noticed  that 
the  defect  can  be  remedied  only  with  the  concurrence  of  the  party  to 
be  made  liable. 

2«  Anson,  Cont  (4tli  Ed.)  204.  2S  Post,  p.  238. 


12  DEFINITION,  NATURE,  AND    REQUISITES   OF   CONTRACT.        (Cu.  1 


ESSENTIALS  OF  CONTRACT. 

Having-  ascertained  the  particular  features  of  contract  as  a  juristic 
conception,  the  next  step  is  to  ascertain  how  contracts  are  made.  A 
part  of  the  definition  of  contract  being  that  it  is  an  agreement  enforce- 
able at  law,  it  follows  that  we  must  analyze  the  elements  of  a  contract 
such  as  the  law  will  hold  to  be  binding  between  the  parties  to  it. 

10.  As  there  must  be  an  agreezuent  directly  contemplating  and  result- 
ing  in  an  obligation,  and  tbe  agreement  must  be  enforceable  in 
tbe  laAX^,  tberefore— 

(a)  Tbere  must  be  a  distinct  communication  by  tbe  parties  to  one 

anotber  of  tbcir  intention,  or  an  offer  and  acceptance. 

(b)  Tbe  agreement  must  possess  tbe  marks  \irliicb  tbe  la^7  requires  in 

order  tbat  it  may  affect  tbe  legal  relations  of  tbe  parties,  and 
be  an  act  in  tbe  lavtr.     Therefore— 

(1)  It  must  be  in  the  form  required  by  law. 

(2)  There  must  be  a  consideration,  when  required  by  law. 

(c)  The  parties  must  be  capable  in  lau:  of  making  a  valid  contract. 

(d)  The  consent  expressed  in  offer  and  acceptance  must  be  genuine. 

(e)  The  objects  \phich  the  contract  proposes  to  effect  must  be  legal. 

Where  all  of  these  elements  coexist,  a  valid  contract  is  the  result. 
If  any  one  of  them  is  absent,  the  agreement  is  in  some  cases  merely 
unenforceable;  in  some  voidable  at  the  option  of  one  of  the  parties; 
and  in  some  absolutely  void.  We  shall  now  take  up  in  turn  each  of 
these  elements  in  separate  chapters. 


r 


10^  J^' 


§§  11-13)  OFFER   AND   ACCEPTANCE.  13 


CHAPTER  n. 

OFFER  AND  ACCEPTANCE. 


t^  y^  "  / 


11-13.  In  General, 

14^15.  Communication  by  Conduct — Implied  Contracts. 

16.  Communication  of  Offer. 

17.  Necessity  and  Effect  of  Acceptance. 
18-20.  Communication  of  Acceptance. 

21.  Character,  Mode,  Place,  and  Time  of  Acceptance. 

22-23,  Revocation  of  Offer, 

24.  Lapse  of  Offer. 

25.  Offers  to  the  Public  Generally. 

26.  Offer  as  Referring  to  Legal  Relations. 


IN  GENERAL. 

11.  To  constitute  a  contract,  the  expression  of  common  intention  mnst 

generally,  if  not  alAvays,  arise  from  an  offer  made  by  one  party 
to  another,  and  an  acceptance  by  the  latter,  vritli  the  result 
that  one  or  both  are  bound  by  a  promise. 

12.  The  ofPer  may  be— 

(a)  Of  a  promise,  or 

(b)  Of  an  act. 

13.  The  acceptance  may  be— 

(a)  Simple  assent;   but  .this  applies  to  contracts  under  seal  only. 

(b)  Giving  of  a  promise. 

(c)  Doing  of  an  act. 

In  practical  matters,  and  for  the  purpose  of  creating  obligations, 
every  expression  of  a  common  intention  arrived  at  by  two  or  more 
parties  is  ultimately  reducible  to  question  and  answer,  or  to  offer  and 
acceptance.^  Thus,  if  a  person  agrees  to  sell  an  article  to  another  for 
a  certain  price,  and  the  latter  agrees  to  buy  it,  we  can  trace  the  pro- 
cess to  the  moment  when  the  seller  says  in  words  or  by  conduct,  "Will 
you  give  me  so  much  for  the  article  ?"  and  the  buyer  replies,  "I  will ;" 
or  when  the  buyer  says,  "Will  you  take  so  much  for  the  article?"  and 
the  seller  says,  "I  will,"     There  is  always  this  question  and  answer,  or 

1  Anson,  Cont.  (4th  Ed.)  11 ;  Leake,  Cont  12 ;  Thruston  v.  Thornton,  1  Cush. 
(Mass.)  91.  Pollock  objects  that  this  analysis  does  not  properly  applj-  to  a 
case  in  rrhlch  the  consent  of  the  parties  is  declared  in  a  set  form,— as  where 
they  both  execute  a  deed  or  sign  a  written  agreement.  Pol.  Cont.  4,  But  he 
adds  that,  "notwithstanding  the  difficulties  that  arise  in  making  proposal 
and  acceptance  necessary  parts  of  the  general  conception  of  contract,  there 
is  no  doubt  that  in  practice  they  are  the  normal  and  most  important  ele- 
ments."  Id.  8. 


14  OFFER  AND  ACCEPTANCE.  (Ch.  2 

offer  and  acceptance,  though  in  many  cases  it  is  not  in  so  many  words. 
A  tradesman  displaying  his  goods  says  in  act,  though  not  in  words, 
"Will  you  buy  my  goods  at  my  price?"  and  a  customer  taking  goods 
with  the  tradesman's  cognizance  virtually  says,  "I  will."  The  pro- 
prietor of  a  public  conveyance,  by  running  it  in  such  a  way  and  place 
as  to  invite  people  to  use  it,  virtually  says,  "Will  you  pay  me  the  fare 
if  I  carry  you?"  and  one  who  gets  into  the  conveyance  to  be  carried, 
by  his  conduct  says,  "I  will,"  as  plainly  as  if  he  were  to  vise  the  words. 
And  so  all  contracts,  or  voluntary  obligations,  may  be  reduced  to  ques- 
tion and  answer,  either  in  words,  or  by  conduct,  or  both.  The  ques- 
tion is  the  offer ;  the  answer  the  acceptance  of  the  offer. 

Forms  of  Oifer  and  Acceptance. 

(i)  A  contract  may  originate  in  the  offer  of  a  promise,  and  its  ac- 
ceptance by  simple  assent,  but  this  applies  only  to  contracts  under  seal, 
for,  as  will  presently  be  seen,  the  law  requires  a  consideration  to  sup- 
port a  promise  not  under  seal,  and  mere  assent  is  not  enough.  Thus, 
where  one  person  promises  another  by  writing  under  seal  that  he  will 
do  a  certain  thing,  or  pay  a  certain  sum,  and  the  promisee  assents  to 
the  proposal,  both  are  bound,  and  there  is  a  contract.  Until  such  as- 
sent, there  is  only  an  offer.  The  offer,  unlike  off'ers  not  under  seal, 
is  at  common  law  irrevocable,  owing  to  the  seal ;  but  until  it  has  been 
assented  to  by  the  person  to  whom  it  is  made  it  does  not  bind  him. 
A  ;person  cannot  be  forced  to  accept  even  a  benefit. 
-  ^  (2)  As  already  shown,  the  presence  of  a  public  conveyance  on  the 
street  is  a  constant  oft'er  by  its  proprietor  to  carry  persons,  and  when 
a  person  steps  into  the  conveyance  he  accepts  the  offer,  and  promises 
to  pay  the  fare..     This  is  an  offer  of  an  act  f or_a^  promjge. 

(3)  If  a  person  who  has  lost  propert}'  offers  by  advertisement  a  re- 
ward to  any  person  who  shall  return  it,  he  offers  a  promise  for  an  act, 

v*-       and  when  a  person  returns  the  property  he  accepts  and  performs  the 
act,  and  the  promise  becomes  binding. 

(4)  If  a  person  offers  another  to  pay  him  a  certain  sum  on  a  future 
day  if  the  latter  will  promise  to  perform  certain  services  for  him  be- 
fore that  day,  or,  vice  versa,  he  offers  a  promise  for  a  promise,  and 
where  the  person  to  whom  the  offer  is  made  accepts  it  by  promising 
to  perform  the  services  or  to  pay,  as  the  case  may  be,  both  parties  are 
bound,  the  one  to  do  the  work  and  the  other  to  make  the  payment. 
This  is  tlie  offer  of_a_promise_foiLa-P.roi^e. 

Executed  and  Executory  Consideration. 

It  will  be  noticed  that  cases  (2)  and  (3)  differ  from  (4)  in.  an  impor- 
tant respect.  In  (2)  and  (3)  the  contract  is  fonned  by  one  part>'  doing 
all  he  can  be  required  to  do  under  the  contract.  The  contract  is  formed 
by  performance  on  one  side,  and  it  is  this  performance  which  makes 
obligatory  the  promise  on  the  other.     The  outstanding  obligation  is 


§§  14r-15)      COMMUNICATION  Br  CONDUCT — IMPLIED  CONTRACTS.  15 

all  on  one  side.  In  (4)  each  party  is  bound  to  some  act  or  forbearance 
in  the  future.  There  is  an  outstanding  obligation  on  both  sides. 
Where  the  benefit,  in  contemplation  of  which  the  promise  is  made,  is 
done  at  the  same  time  that  the  promise  acquires  a  binding  force, — 
where  it  is  the  doing  of  the  act  that  concludes  the  contract, — then  the 
act  so  done  is  called  an  executed  or  present  consideration  f^r  the  prom- 
ise. Where  a  promise  is  given  for  a  promise,  each  forming  the  con- 
sideration for  the  other,  the  consideration  is  said  to  be  ejLficutery-or 


COMMUNICATION  BY  CONDUCT— IMPLIED  CONTRACTS. 

14.  An  offer  or  its  acceptance  may  be  made  by  conduct  as  ivell  as  by 

ivords. 

15.  "Where  tlie  terms  of  a  contract  are  sboMcn  by  tbe  acts  of  the  par- 

ties, the  contract  is  said  to  be  implied.  It  is,  bow^ever,  implied 
as  a  matter  of  fact.  There  is  an  agreement  in  fact,  evidenced 
by  acts. 

From  what  has  already  been  said  as  to  the  possible  forms  of  offer 
and  acceptance,  it  will  have  been  seen  that  conduct  may  take  the  place 
of  written  or  spoken  words  in  the  making  of  contracts.^ 

If  a  person  asks  another  to  perform  a  service  for  him  for  compensa- 
tion, the  latter  may  accept  the  offer  simply  by  performing  the  service, 
unless  a  particular  form  of  acceptance  is  prescribed  in  the  offer.  His 
acceptance  is  inferred  or  implied  from  his  conduct.^ 

Again,  if  a  person  allows  another  to  work  for  him  under  such  cir- 
cumstances that  no  reasonable  man  would  suppose  that  the  latter  means 
to  do  the  work  for  nothing,  he  will  be  liable  to  pay  for  it.  The  doing 
of  the  work  is  an  offer ;  the  permission  to  do  it,  or  acquiescence  in  its 
being  done,  is  the  acceptance.  The  offer  and  acceptance  are  inferred 
or  implied  as  a  matter  of  fact  from  the  circumstances.* 

2  Morse  v.  Bellows,  7  N.  H.  549,  28  Am.  Dec.  372;  HoughTVout  v.  Boisaubin, 
18  N.  J.  Eq.  315;  Smith  v.  Ingram,  90  Ala.  529,  8  South.  144;  Wetmore  v. 
Men,  1  Ohio  St.  26,  59  Am.  Dec.  607;  Sturges  v.  Robbins,  7  Mass.  301;  Train 
V.  Gold,  5  Pick.  (Mass.)  384;  New  York  &  N.  H.  R.  Co.  v.  Pixley,  19  Barb. 
(N.  Y.)  428.  Taking  goods;  implied  promise  to  pay  for  them.  Stoudenmire  v. 
Harper,  81  Ala.  242,  1  South.  857.  Sending  goods  in  response  to  an  order  is 
an  acceptance  of  the  offer  to  buy  contained  in  the  order.  Crook  v.  Cowan, 
64  N.  C.  743;  Briggs  v.  Sizer,  30  N.  Y.  652;  Harvey  v.  Johnston,  6  O.  B.  295. 
Retention  of  the  order,  if  explained,  is  not  an  acceptance.  Briggs  v.  Sizer, 
30  N.  Y.  652.  Taking  possession  of  property  in  accordance  with  a  letter 
offering  to  sell  it  is  an  acceptance.     Dent  v.  Steamship  Co.,  49  N.  Y.  390. 

3  See  REIF  v.  PAIGE,  55  Wis.  503,  13  N.  W.  473,  42  Am.  Rep.  731 ;  Coston 
V.  :MoiTis,  51  Hun,  643.  4  N.  Y.  Supp.  89.    See,  also,  post,  p.  38,  and  notes. 

»  Paynter  v.  Williams,  1  Cromp.  &  M.  810;  DAY  v.  CATON.  119  Mass.  513, 
20  Am.  Rep.  347;  Huck  v.  Flentye,  80  111.  258;   De  Wolf  v.  City  of  Chicago,  26 


16  OFFER  AND  ACCEPTANCE.  (Cb.  2 

So,  also,  if  a  person  sends  goods  to  another,  not  under  such  circum- 
stances as  reasonably  to  lead  the  latter  to  suppose  them  a  gift,  and 
the  latter  uses  or  consumes  them,  he  will  be  liable  on  an  implied  prom- 
ise to  pay  what  the  goods  are  reasonably  worth.  The  offer  is  made 
by  sending  the  goods ;  the  acceptance,  by  their  use  or  consumption, 
which  is  in  fact  a  promise  to  pay  their  price. ° 

Where  conduct  is  relied  on  as  constituting  acceptance,  it  must  be 
something  more  than  mere  silence;  it  must  be  silence  under  such  cir- 
cumstances as  to  amount  to  acquiescence  or  assent' 

"Implied  Contracts" — The  Term  Explained. 

Contracts  implied  from  the  conduct  of  the  parties  are  implied  as  a 
matter  of  fact,  and  not  as  a  matter  of  law.  There  is,  in  fact,  an 
agreement  between  the  parties,  though  it  is  shown  by  their  acts,  and 
not  by  express  words. '^  If  a  man  says  to  another  in  words,  "I  will 
sell  you  this  article  for  the  market  price,"  and  the  latter,  taking  it, 
says  in  words,  "I  accept  your  offer,  and  will  pay  the  price,"  there  is 
an  express  contract,  evidenced  by  express  words.  If  a  man  sends 
another  goods  under  such  circumstances  as  to  show  that  he  expects  pay- 
ment, and  the  latter  accepts  and  consumes  the  goods,  there  is  an  im- 
plied contract  that  he  will  pay  the  market  price,  evidenced  by  the  con- 
Ill.  444;  Hartnpee  v.  City  of  Pittsburg,  97  Pa.  107;  Thomas  v.  Coal  Co..  43 
Mo.  App.  653:  Lockwood  v.  Robbius,  125  Ind.  398,  25  N.  E.  455.  No  promise, 
however,  on  the  part  of  a  person  benefited  by  work,  can  be  implied  where 
the  work  was  done  under  a  special  conti-act  with  another  person.  Walker  v. 
Brown,  28  111.  378,  81  Am.  Dec.  287;  Massachusetts  Gen.  Hospital  v.  Fair- 
banks, 129  Mass.  78,  37  Am.  Rep.  303.  A  promise  cannot  be  implied  where 
the  whole  matter  is  covered  by  an  express  contract.  See  Phelps  v.  Sheldon, 
13  Pick.  (Mass.)  50,  23  Am.  Dec.  659;  Waite  v.  Merrill,  4  Greenl.  (Me.)  102, 
16  Am.  Dec.  238;  Stockett  v.  Watkins'  Adm'rs,  2  Gill  &  J.  (Md.)  326.  20  Am. 
Dec.  438;  Wheelock  v.  Freeman,  13  Pick.  (Mass.)  165,  23  Am.  Dec.  674; 
King  V.  Woodruff,  23  Conn.  56,  60  Am.  Dec.  125. 

5  Hart  V.  Mills,  15  Mees.  &  W.  87;  Manor  v.  Pyne,  3  Ring.  288;  Larkin  v. 
Lumber  Co.,  42  Mich.  296,  3  N.  W.  904;  Kinney  v.  Railroad  Co.,  82  Ala. 
368,  3  South.  113;  Indiana  Mfg.  Co.  v.  Hayes,  155  Pa.  160,  26  Atl.  6;  Empire 
Steam  Pump  Co.  v,  Inman,  59  Hun,  230,  12  N.  Y.  Supp.  948;  Rosenfield  v. 
Swenson,  45  Minn.  190,  47  N.  W.  718;  Hobbs  v.  Whip  Co.,  158  Mass.  194.  33 
N.  E.  495.  The  person  to  whom  the  goods  are  sent  must  in  some  way  deal 
with  them  as  his  own  in  order  that  an  acceptance  may  be  implied.  If  he 
does  not  choose  to  take  them,  he  Is  not'bouijd  to  return  them.  Pol.  Cont.  11. 
Where  goods  are  ordered,  and  only  a  part  are  sent,  the  person  so  ordering  need 
not  accept  tliem.  If  he  does  so,  however,  he  impliedly  agrees  to  pay  what 
the  goods  are  reasonably  vv'orth.  Chapman  v.  Dease,  34  Mich.  375;  DER- 
MOTT  v.  JONES,  23  How.  220,  16  L.  Ed.  442;  Star  Glass  Co.  v.  Morey, 
108  Mass.  570;  Goodwin  v.  Men-ill.  13  Wis.  737;  Richards  v.  Sha^,  67  111. 
222.     But  see  Kein  v.  Tupper,  52  N.  Y.  550. 

6  ROYAL  INS.  CO.  v.  BEATTY,  119  Pa.  6,  12  Atl.  607,  4  Am.  St.  Rep.  622; 
O'Neal  V.  Knippa  (Tex.  Sup.)  19  S.  W.  1020. 

T  Pol.  Cont.  9-11;   Leake,  Cont  11. 


§§  14-15)      COMMUNICATION  BY  CONDUCT — IMPLIED  CONTRACTS.  17 

duct  of  the  parties  in  sending  the  goods  on  the  one  side,  and  in  ac- 
cepting and  using  them  on  the  other.  Sending  the  goods  is  an  oflFer 
to  sell  them,  and  accepting  and  using  them  is  an  acceptance  of  the  of- 
fer. There  is  no  difference  in  the  two  contracts  except  in  the  evi- 
dence by  which  the  agreement  is  shown.*  The  distinction  between 
contracts  implied  from  the  conduct  of  the  parties  and  so-called  "im- 
plied contracts"  which  are  properly  "quasi  contracts,"  has  been  ex- 
plained.* 

Same — Relationship  of  the  Parties. 

Where  one  person  renders  services  for  another,  or  supports  another, 
the  relationship  of  the  parties  is  of  great  weight  in  determining  their 
intention.  If  the  relationship  is  that  of  parent  and  child,  even  though 
the  child  has  attained  his  or  her  majority,  there  is  a  presumption  that 
no  compensation  was  intended;  ^°  and  this  applies  not  only  where  the 
relationship  of  parent  and  child  actually  exists,  but  also  where  one  of 
the  parties  stands  in  loco  parentis  to  the  other.^^  Most  courts  do  not 
stop  at  this,  but  apply  the  rule  wherever  the  parties  occupy  a  near  re- 
lationship, or,  though  not  related  at  all,  or  only  distantly,  are  mem- 
bers of  the  same  family,  and  the  services  consist  either  in  household 
or  other  family  duties  by  one  party,  and  support  and  maintenance  by 
the  other.^^  In  some  cases  the  presumption  against  the  existence  of 
a  contract  does  not  exist.^^  As  to  this,  the  authorities  are  in  conflict. 
In  some  states,  a  presumption  that  the  services  were  gratuitous  only 
arises  in  the  case  of  parent  and  child,  or  child  and  person  standing  in 
loco  parentis.     In  most  states,  however,  the  presumption  arises  in  all 

8  BIXBT  V.  MOOR,  51  N.  H.  402. 

9  Ante,  p.  8. 

10  Young  V.  Herman,  97  N.  C.  280,  1  S.  E.  792;  Bantz  v.  Bantz,  52  Md.  693; 
Cowan  V.  Musgrave,  73  Iowa,  384,  35  N.  W.  496;  McGarvy  v.  Roods,  73  Iowa, 
363,  35  N.  W.  488;  Hudson  v.  Hudson,  90  Ga.  581,  16  S.  E.  349;  In  re 
Young's  Estate,  148  Pa.  575,  24  Atl.  124;  Howe  v.  North,  69  Mich.  272,  37  N. 
W.  213;  Allen  v.  Allen,  60  Mich.  635,  27  N.  W.  702;  Grant  v.  Grant,  109  N. 
C.  710,  14  S.  E.  90. 

11  Dodson  V.  McAdams,  96  N.  C.  149,  2  S.  E.  453,  60  Am.  Rep.  408;  Ormsbv 
V.  Rhoades,  59  Vt.  505,  10  Atl.  722;  Starkie  v.  Perry,  71  Gal.  495,  12  Pac.  508: 
Wyley  t.  Bull,  41  Kan.  206,  20  Pac.  855;  Appeal  of  Barhite,  126  Pa.  404,  17 
Atl.  617;   Harris  v.  Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A.  702. 

12  Disbrow  v.  Durand.  54  N.  J.  Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678; 
Cone  v.  Cross,  72  Md.  102,  19  Atl.  391;  Curry  v.  Curry,  114  Pa.  367,  7  Atl.  61; 
Feiertag  v.  Feiertag,  73  Mich.  297,  41  N.  W.  414;  Patterson  v.  Collar,  31  111. 
App.  340;  Collar  v.  Patterson,  137  111.  403,  27  N.  E.  604;  Reeves'  Estate  v. 
Moore,  4  Ind.  App.  492,  31  N.  E.  44;    Gerz  v.  Weber,  151  Pa.  396,  25  Atl.  82. 

Where  a  woman  married  a  man  and  lived  with  him  till  his  death,  but  after- 
wards learned  that  he  had  a  wife  living,  held  that  she  could  not  recover  in 
an  action  of  contract  against  his  administrator  for  her  services  in  keeping 
house.    COOPER  v.  COOPER,  147  Mass.  370,  17  N.  E.  892,  9  Am.  St.  Rep.  721. 

IS  In  re  Shubart's  Estate,  154  Pa.  230,  26  Atl.  202. 

Olaek  Cont.  (2d  Ed.) — 2 


18  OFFER  AND  ACCEPTANCE.  (Ch.  2 

cases  where  the  parties  occupy  the  position  of  members  of  the  same 
family;  the  one  furnishing  support,  and  the  other  rendering  services. 
In  all  cases  it  may  be  shown  that  there  was  an  agreement  for  compen- 
sation.* As  said  in  an  Indiana  case,  a  contract  will  be  implied,  not- 
withstanding the  relationship,  where  there  is  hope  of  compensation  on 
one  side  and  expectation  to  award  it  on  the  other.^* 


COMMUNICATION  OF  OFFER. 
10.   An  offer  is  made  when  it  is  oommnnioated  to  the  offeree* 

It  is  plain  that  without  communication  of  the  offer  there  can  be  no 
consensus,  and  therefore  no  contract. 

Thus,  in  the  case  of  an  offer  of  a  promise  for  an  act,  if  the  offeree 
does  the  act  in  ignorance  of  the  offer,  he  is  not  entitled  to  the  benefit 
of  the  promise.  It  is  for  this  reason  that  a  person  who  does  an  act 
for  which  a  reward  is  offered,  in  ignorance  of  the  offer,  cannot  claim 
the  reward.^  ^ 

Again,  if  a  person  does  work  for  another  under  such  circumstances 
that  it  could  not  reasonably  be  supposed  that  he  meant  to  work  for 
nothing,  the  doing  of  the  work  is  an  offer,  and  acquiescence  in  its  do- 
ing may  be  an  acceptance.  But  if  the  offer  is  not  communicated  to 
the  person  to  whom  it  is  intended  to  be  made,  there  can  be  no  acquies- 
cence. 

Thus,  where  a  person  who  had  been  engaged  to  command  a  ship 
threw  up  his  command  during  the  voyage,  but  helped  to  work  the 
vessel  home,  and  then  claimed  compensation  for  such  services,  it  was 
held  that  he  could  not  recover.^"     Evidence  "of  a  recognition  or  ac- 

*As  to  the  sufficiency  of  the  evidence  to  show  that  there  was  a  contract, 
see  Pritchard  v.  Pritchard,  69  Wis.  373,  34  N.  W.  506;  McMillan  v.  Page,  71 
Wis.  655,  38  N.  W.  173;  Shane  v.  Smith,  37  Kan.  55,  14  Pac.  477;  Petty  v. 
Young.  43  N.  J.  Eq.  654,  12  Atl.  392;  Appeal  of  Lindsey  (Pa.  Sup.)  15  Atl. 
434 ;  Doremus  v.  Lott,  49  Hun,  284,  1  N.  Y.  Supp.  793 ;  Hill  v.  Hill,  121  Ind. 
255,  23  N.  E.  87;  Hogg  v.  Laster,  56  Ark.  382,  19  S.  W.  975;  Henzler's  Estate 
V.  Bossard,  6  Ind.  App.  701,  33  N.  E.  217;  Zimmerman  v.  Zimmerman,  129 
Pa.  229,  18  Atl.  129,  15  Am.  St.  Rep.  720;  Havens  v.  Havens,  50  Hun,  605, 
3  N.  Y.  Supp.  219;  Spitzmiller  v.  Fisher,  77  Iowa,  289,  42  N.  W.  197;  Ellis 
V.  Gary,  74  Wis.  176,  42  N.  W.  252,  4  L.  R.  A.  55,  17.  Am.  St.  Rep.  125;  Davis 
v.  Gallagher,  56  Hun,  593,  9  N.  Y.  Supp.  11;  Kirkpatrick  v.  Gallagher,  34  S. 
G.  255.  13  S.  E.  450;  McCormick  v.  McCormick,  1  Ind.  App.  594,  28  N.  E. 
122;  Story  v.  Story,  1  Ind.  App.  284,  27  N.  E.  573;  Stock  v.  Stoltz,  137  111.  349, 
27  N.  E.  604;  Wayman  v.  Wayman  (Ky.)  22  S.  W.  557;  O'Kelly  v.  Faulkner. 
92  Ga.  521,  17  S.  E.  847. 

1*  Huffman  v.  Wyrick,  5  Ind.  App.  183,  31  N.  E.  823. 

i»  Post,  p.  40. 

i«  Taylor  v.  Laird,  25  L.  J.  Exch.  329.  And  see  BARTHOLOMEW  v. 
JACKSON,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237,  in  which  it  was  held  that  a 


§  16)  *POMMUNICATION   OF   OFFER.  19 

ceptance  of  services,"  it  was  said,  "may  be  sufficient  to  show  an  im- 
plied contract  to  pay  for  them,  if  at  the  time  the  defendant  had  power 
to  accept  or  refuse  the  services;"  but  in  this  case  the  defendant  never 
had  such  an  option,  and  repudiated  the  services  when  he  became  aware 
of  them.  The  offer,  not  having  been  communicated  to  the  owner  of 
the  vessel,  did  not  admit  of  acceptance,  and  could  give  no  rights 
against  him.  As  said  in  the  case  mentioned :  "Suppose  I  clean  your 
property  without  your  knowledge,  have  I  then  a  claim  on  you  for 
payment  ?  How  can  you  help  it  ?  One  cleans  another's  shoes ;  what 
can  the  other  do  but  put  them  on?  Is  that  evidence  of  a  contract  to 
pay  for  the  cleaning?" 

Terms  of  Oifer  Partly  Uncommunicated. 

If  an  offer  contains  on  its  face  the  terms  of  a  complete  contract, 
the  acceptor  will  not  be  bound  by  any  other  terms  intended  to  be  in- 
cluded, unless  he  knew  those  terms,  or  had  their  existence  brought 
to  his  knowledge,  and  was  capable  of  informing  himself  of  their 
nature.^ ^  Illustrations  of  this  frequently  arise  in  the  case  of  con- 
tracts of  carriage  or  bailment  with  a  railroad  company  or  warehouse- 
man, evidenced  by  a  ticket  or  other  document  containing  terms  modi- 
fying the  liability  of  the  company  or  warehouseman  as  carrier  or 
bailee,  though,  of  course,  they  may  arise  in  the  case  of  other  con- 
tracts. 

The  law  on  this  point  was  thus  stated  in  an  English  case:  "If 
the  person  receiving  the  ticket  did  not  see  or  know  that  there  was 
any  writing  on  the  ticket,  he  is  not  bound  by  the  conditions ;  if  he 
knew  there  was  writing,  and  knew  or  believed  that  the  writing  con- 
tained conditions,  then  he  is  bound  by  the  conditions;  if  he  knew 
there  was  writing  on  the  ticket,  but  did  not  know  or  believe  that 
the  writing  contained  conditions,  nevertheless  he  would  be  bound, 
if  the  delivery  to  him  of  the  ticket  in  such  a  manner  that  he  could 
see  that  there  was  writing  on  it,  was,  in  the  opinion  of  the  jury, 
reasonable   notice  that  the  writing  contained   conditions."  ^'     In  all 

person  who  removed  another's  property  without  the  latter's  knowledge,  to  pre- 
vent its  destruction  by  fire,  could  not  recover  for  his  services,  because  no  offer 
was  ever  communicated.  See,  also,  Thornton  v.  Village  of  Stui'gis,  38  Mich. 
639;  Nagle  v.  McMurray,  84  Cal.  539,  24  Pac.  107;  Burrows  v.  Ward,  15  R.  I. 
346,  5  Atl.  500;  Brennan  v.  Chapin  (Com.  PI.  N.  Y.)  19  N.  Y.  Supp.  237; 
Mann  v.  Farnum,  17  Colo.  427,  30  Pac.  332. 

17  In  order  that  a  prospectus  of  a  proposed  publication  may  become  a  part 
of  the  contract  of  a  subscriber  for  the  work  to  be  published,  so  that  he  may 
take  advantage  of  statements  contained  therein,  it  must  appear  that  the 
contents  of  the  prospectus  were  communicated  to  him,  so  that  he  may  be 
supposed  to  have  been  influenced  thereby.  Tichnor  v.  Hart,  52  Minn,  407,  54 
N.  W.  369. 

18  Parker  v.  Railway  Co.,  2  C.  P.  Div.  423.  See,  also,  Richardson  v.  Roun- 
ti-ee  [1S94J  App.  Cas.  217;  The  Majestic,  166  U.  S.  375,  17  Sup.  Ct  597,  41  L. 


20  OFFER  AND  ACCEPTANCE.  (Ch.  2 

cases,  however,  the  question  is  the  same,  namely,  have  the  terms  of 
the  offer  been  fully  communicated  to  the  acceptor?  And  the  tend- 
ency of  judicial  decision  is  towards  a  general  rule  that,  if  a  man 
accepts  a  document  which  purports  to  contain  the  terms  of  an  offer, 
he  is  bound  by  all  the  terms,  though  he  may  not  choose  to  inform 
himself  of  their  tenor,  or  even  of  their  existence.^* 

Same — Contract  under  Seal. 

There  is  one  exception  to  the  inoperative  character  of  an  uncom- 
municated  offer.  This  is  in  case  of  an  offer  under  seal.  The  po- 
sition of  the  party  making  the  offer,  however,  is  not  that  he  is  bound 
by  the  contract,  for  this  can  only  be  when  an  offer  is  accepted,  but 
that  he  has  made  an  offer  which  he  cannot  withdraw.  For  this  rea- 
son the  matter  is  best  dealt  with  under  the  head  of  revocation  of 
offers." 

Ed.  1039.  Where  a  ticket  by  steamer  from  Dublin  to  Whitehaven  contained 
on  its  face  only  the  words,  "Dublin  to  Whitehaven,"  it  was  held  that  the  pur- 
chasei-  was  not  bound  by  conditions  on  the  back  of  the  ticket,  which  he  had 
not  seen,  since  the  ticket  was  a  complete  contract  on  its  face.  Henderson  v. 
Stevenson,  L.  R.  2  H.  L.  470. 

On  the  other  hand,  where  a  ticket  had  written  on  its  face  the  words,  "Sub- 
ject to  the  conditions  on  the  other  side,"  and  the  person  to  whom  it  was 
issued  admitted  knowledge  that  there  were  conditions,  but  said  he  had  not 
read  them,  the  conditions  contained  on  the  back  were  held  binding  notwith- 
standing they  were  not  read.    Harris  v.  Railway  Co.,  1  Q.  B.  Div.  515. 

In  another  case  the  ticket  contained  on  its  face  the  words,  "See  back," 
and  the  person  to  whom  it  was  given  admitted  knowledge  of  wi-iting  on  the 
ticket,  but  denied  all  knowledge  that  the  writing  contained  conditions.  It 
was  held  that  he  was  bound  by  the  conditions  if  the  jury  were  of  opinion 
that  the  ticket  amounted  to  a  reasonable  notice  of  their  existence.  Parker 
V.  Southeastern  Ry.  Co.,  supra. 

19  Burke  v.  Railway  Co.,  5  C.  P.  Div.  1;  Watkins  v.  Rymill,  10  Q.  B.  Div. 
178;  McClure  v.  Railroad  Co.,  34  Md.  532,  6  Am.  Rep.  345;  Johnson  v.  Same, 
63  Md.  106 ;  BOYLAN  v.  RAILROAD  CO.,  132  U.  S.  146,  10  Sup.  Ct.  50,  33 
L.  Ed.  290;  Durgin  v.  Express  Co.,  66  N.  H.  277,  20  Atl.  328,  9  L.  R.  A.  453; 
Davis  V.  Railroad  Co.,  66  Vt.  290,  29  Atl.  313,  44  Am.  St.  Rep.  852 ;  FONSECA 
V.  STEAMSHIP  CO.,  153  Mass.  553,  27  N.  E.  665,  12  L.  R.  A.  340,  25  Am.  St. 
Rep.  660;  Schaller  v.  Railway  Co.,  97  Wis.  31,  71  N.  W.  1042.  But  some 
courts  hold  that,  where  a  contract  limiting  the  common-law  liability  of  the 
carrier  is  contained  in  a  bill  of  lading,  the  burden  is  on  the  carrier  to  show 
that  the  limitations  were  assented  to.  See  Michigan  Cent.  R.  v.  Manufactur- 
ing Co.,  16  Wall.  318,  21  L.  Ed.  297;  9  Cyc.  Law  &  Proc.  263.  One  who  ac- 
cepts a  document  reasonably  purporting  to  be  a  mere  check  or  voucher,  and 
not  a  contract,  without  knowledge  of  stipulations  contained  in  It,  does  not 
assent  to  such  stipulations.  MALONE  v.  RAII-ROAD  CORP.,  12  Gray  (Mass.) 
388,  74  Am.  Dec.  598.    See  FONSECA  v.  STEAMSHIP  CO.,  supra. 

ao  Post,  p.  32. 


§  17)  NECESSITY   AND   EFFECT   OF  ACCEPTANCE.  21 


NECESSITY    AND    EFFECT    OF    ACCEPTANCE. 


>  17.   An  offer  before  it  vcrill  become  a  binding  promise  mnst  be  accepted. 


s 


It  is  the  universal  rule  that  an  offer  must  be  accepted  before  it 
will  become  a  binding  promise,  and  result  in  a  contract.'^^  This  rule 
springs  from  the  very  nature  of  contract  as  involving  the  element 
of  agreement.^ ^  An  unaccepted  offer,  therefore,  cannot  create  any 
^  rights,  or  bind  the  party  making  it  to  the  party  to  whom  it  is  made. 
\^  j^A_f ortiori,  it  cannot  bind  the  party  to  whom  it  is  made.^'  "A  con- 
'  tract,"  it  has  been  said  by  Pothier,  "includes  a  concurrence  of  in- 
tention in  two  parties,  one  of  whom  promises  something  to  the  other, 
who,  on  his  part,  accepts  such  promise.  A  pollicitation  is  a  promise 
not  yet  accepted  by  the  person  to  whom  it  is  made.  Pollicitatio  est 
solius  offerentis  promissum.  A  pollicitation,  according  to  the  rules 
of  mere  natural  law,  does  not  produce  what  can  be  properly  called 
an  obligation;  and  the  person  who  has  made  the  promise  may  re- 
tract it  any  time  before  it  is  accepted ;  for  there  cannot  be  any 
obligation  without  a  right  being  acquired  by  the  person  in  whose 
favor  it  is  contracted  against  the  party  bound.-y'Now,  as  I  cannot, 
by  the  mere  act  of  my  own  mind,  transfer  to  another  a  right  in  my 
goods,  without  an  intention  on  his  part  to  accept  them,  neither  can  I 
by  my  promise  confer  a  right  against  my  person,  until  the  person  to 
whom  the  promise  is  made  has,  by  his  acceptance  of  it,  concurred 
in  the  intention  of  acquiring  such  right."  ^* 

An  offer,  as  we  shall  presently  see,  can  be  revoked  at  any  time 
before   acceptance.     Acceptance,   whether   by   words   or   by   conduct, 

21  PAYNE  V.  CAVE,  3  Term  R.  148;  Tuttle  v.  Love,  7  Johns.  (N.  Y.)  470; 
Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190,  7  Am.  Dec.  305;  First  Nat.  Bank 
V.  Hall,  101  U.  S.  43,  25  L.  Ed.  822;  McKinley  v.  AYatklns,  13  111.  140;  Bruce 
V.  Bishop,  43  Vt.  161 ;  Weiden  v.  Woodruff,  38  Mich.  130 ;  Brown  v.  Rice,  29 
Mo.  322 ;  Belfast  &  M.  L.  R.  Co.  v.  Inhabitants  of  Unity,  62  Me.  148 ;  Bower 
V.  Blessing,  8  Serg.  &  R.  (Pa.)  243;  King  v.  Warfield,  07  Md.  246,  9  Atl.  539. 
1  Am.  St.  Rep.  384;  Missom-i  Pac.  Ry.  Co.  v.  Railway  Co.  (C.  G.)  31  Fed. 
864:  Etheredge  v.  Barkley,  25  Fla.  814.  6  South.  861;  Hodges  v.  Sublett,  91 
Ala.  588,  8  South.  800;  Graff  v.  Buchanan,  46  Minn.  254,  48  N.  W.  915;  Bron- 
son  V.  Herbert,  95  Mich.  478,  55  N.  W.  359;  McCormick  Harvesting  Mach.  Co. 
V.  Richardson,  89  Iowa,  525,  56  N.  W.  682. 

2  2  Ante,  p.  2.  Suppose  A.  makes  an  olTer  by  letter  to  B.  to  sell  him  cer- 
tain goods  at  a  certain  price,  and  B.,  not  knowing  of  the  offer,  makes  an 
offer  by  letter  to  A.  to  buy  the  goods  at  that  price,  and  the  letters  cross  each 
other.  This  is  not  sufficient  to  constitute  a  contract,  for  there  is  no  accept- 
ance by  either  of  the  other's  offer,  though  it  may  be  said  that  the  minds  of 
the  parties  are  ad  idem.    See  TINN  v.  HOFFMAN,  29  L.  T.  (N.  S.)  271. 

23  STENSGAARD  v.  SMITH,  48  Minn.  11,  44  N.  W.  669,  19  Am.  St.  Rep.  205 ; 
Melchers  v.  Springs,  33  S.  C.  279,  11  S.  E.  788. 

a*  Poth.  Obi.  p.  1,  c.  1,  §  1,  art  2. 


22  OFFER  AND   ACCEPTANCE.  (Ch.  2 

supplies  the  element  of  agreement,  which  binds  the  party  making  it 
to  a  fulfillment  of  its  terms. ^'  It  changes  the  character  of  the  offer, 
and  makes  it  a  promise. ^° 


COMMUNICATION  OF  ACCEPTANCE. 

18.  Where  the  offer  contemplates  the  perfcmiaiLce  of  or  forbearance 

from  an  act  as  the  consideration  of  the  promise  of  the  offeror, 
the  performance  or  forbearance  is  an  acceptance,  unless  the 
offeror  expressly  or  impliedly  prescribes  that  the  acceptance 
mnst  be  oommnnicated. 

19.  Where  the  offer  contemplates  a  promise  as  the  consideration   of 

the  promise  of  the  offeror,  communication  of  the  acceptance 
is  essential,  unless  the  offer  contemplates  that  the  perform- 
ance of  some  overt  act  manifesting  an  intention  to  accept  shall 
be  an  acceptance,  in  -which  case  performance  of  the  act  is  an 
acceptance. 

20.  Where  the  offer  contemplates   the   dispatch   of   an  acceptance   by 

means  beyond  the  acceptor's  control,  as  by  post,  telegraph,  or 
the  offeror's  messenger,  an  acceptance  so  dispatched  is  effective 
from  the  time  of  dispatch,  unless  the  offeror  makes  the  forma- 
tion of  the  contract  dependent  upon  actual  communication  to 
himself. 

It  is  frequently  said  that  it  is  essential  to  the  formation  of  a  con- 
tract that  the  acceptance  be  communicated,  but,  as  already  intimated, 
such  is  far  from  being  the  fact.  It  is,  indeed,  true  that  acceptance 
must  be  more  than  mere  mental  assent.^^  Where,  for  instance,  a 
person  by  letter  offered  to  buy  another's  horse  for  a  certain  price, 

25  HARRIS'  CASE,  L.  R.  7  Ch.  App.  587;  Thruston  v.  Thornton,  1  Cush. 
(Mass.)  91;  Bowen  v,  Tipton,  64  Md.  275,  289,  1  Atl.  861;  Equitable  Endow- 
ment Ass'n  V.  Fisher,  71  Md.  430,  IS  Atl.  808;  Fried  v.  Insurance  Co.,  50  N. 
Y.  243 ;  White  v.  Baxter,  71  N.  Y.  254 ;  Hamilton  v.  Insurance  Co.,  5  Pa.  339 ; 
Wheeler  v.  Railroad  Co.,  115  U.  S.  29.  5  Sup.  Ct.  1061,  29  L.  Ed.  341 ;  Hawkin- 
son  V.  Harmon,  69  Wis.  551,  35  N.  W.  28 ;  Wilcox  v.  Cline,  70  Mich.  517,  38 
N.  W.  555 ;  Merchant  v.  O'Rourke,  111  Iowa,  351,  82  N.  W.  759.  A  bid  at 
an  auction  sale  is  accepted  when  the  hammer  is  struck  down,  and  the  contract 
is  then  complete.  PAYNE  v.  CAVE,  3  Term  R.  148;  Blossom  v.  Rail- 
way Co.,  3  Wall.  196,  18  L.  Ed.  43;  Ives  v.  Tregent,  29  Mich.  390.  Where 
an  offer  is  made  containing  conditions,  an  acceptance  without  qualification  is 
an  acceptance  of  the  conditions,  and  makes  a  binding  contract.  Lawrence  v. 
Railway  Co.,  84  Wis.  427,  54  N.  W.  797. 

2«  See  Gartner  v.  Hand,  86  Ga.  558,  12  S.  E.  878. 

27  WHITE  V.  CORLIES,  46  N.  Y.  467;  FELTHOUSE  v.  BINDLEY.  11  C. 
B.  (N.  S.)  809 ;  HERB'S  CASE,  L.  R.  4  Eq.  9 ;  Brogden  v.  Railway  Co.,  L. 
R.  2  App.  Cas.  691 ;  Stitt  v.  Huidekopers,  17  Wall.  385,  21  L.  Ed.  644 ;  MAC- 
TIER'S  ADM'RS  V.  FRITH,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262 ;  Van  Valken- 
burg  V.  Rogers,  18  Mich.  180 ;  Strasburg  R.  R.  Co.  v.  Echternacht,  21  Pa.  220, 
60  Am.  Dec.  49;  Ueberroth  v.  Riegel,  71  Pa.  280;  Beckwith  v.  Cheever,  21 
N.  H.  41 ;  Trounstine  v.  Sellers,  35  Kan.  447,  11  Pac.  441 ;   Oilman  v.  Kibler, 


§§  18-20)  COMMUNICATION   OF  ACCEPTANCE.  23 

adding,  "If  I  hear  no  more  about  him,  I  consider  the  horse  is  mine 
at**"  that  price;'  and  no  answer  was  returned,  it  was  held  that  there 
was  no  contract,  and  this,  though  it  appeared  that  the  person  to  whom 
the  offer  was  sent  had  made  up  his  mind  to  accept,  and  had  stated 
to  a  third  person  that  the  horse  was  sold.^*  A  person  making  an  offer 
may  indicate  some  overt  act  tlie  performance  of  which  shall  be  a  suffi- 
cient manifestation  of  acceptance,  but  the  statement  to  a  third  person 
that  the  horse  was  sold  was  not  such  an  act,  and  the  silent  assent  of  the 
offeree  was  not  an  acceptance. 

Whether  or  not  communication  of  the  acceptance  is  essential  to 
the  formation  of  a  contract  must  depend  upon  the  nature  and  terms 
of  the  offer;  that  is,  upon  whether  the  offeror  proposes  to  be  bovmd 
upon  the  performance  of  an  act  by  the  offeree,  or  upon  his  com- 
munication of  his  acceptance  of  the  offer.  "Where  a  person  in  an 
offer  made  by  himself  to  another  person  expressly  or  impliedly  in- 
timates a  particular  mode  of  acceptance  as  sufficient  to  make  the  bar- 
gain binding,  it  is  only  necessary  for  the  other  person  *  *  *  to 
follow  the  indicated  mode  of  acceptance;  and  if  the  person  making 
the  offer  expressly  or  impliedly  intimates  in  his  offer  that  it  will  be 
sufficient  to  act  on  the  proposal  without  communicating  acceptance 
of  it  to  himself,  performance  of  the  consideration  is  a  sufficient  ac- 
ceptance without  notification."  ^®  ^  If  the  offer  contemplates  the  do- 
ing or  forbearance  from  the  doing  of  an  act  as  the  consideration  of 
the  promise  of  the  offeror,  unless  the  offer  prescribes  communication, 
the  mere  performance  of  the  consideration  completes  the  contract."* 
Thus,  if  a  person  orders  goods  of  a  merchant,  who  ships  them  pur- 
suant to  the  order,  the  contract  of  sale  is  complete  upon  the  ship- 
ment; ^^    and  if  a  person  offers  a  reward  for  the  return  of  lost  arti- 

5  Humph.  (Tenn.)  19;  Stuart  v.  Railroad  Co.,  32  Grat.  (Va.)  146;  Johnson  v. 
Jacobs,  42  Minn.  168,  44  N.  W.  6 ;   Cozart  v.  Herndon,  114  N.  C.  252,  19  S.  E.  158. 

In  Lancaster  v.  Elliott,  28  Mo.  App.  86,  it  was  held  that  a  proposal  by  de- 
fendant to  relinquish  certain  rights  against  plaintiff  was  not  accepted  by 
writing  on  the  proposal  the  word  "Accepted,"  and  depositing  in  bank  a  sum 
of  money  to  be  applied  as  required  by  the  proposal,  where  both  the  proposal 
and  the  deposit  remained  under  plaintiff's  control. 

Where  an  order  for  goods  is  given  to  an  agent  of  the  manufacturer,  a 
letter  from  the  latter  to  the  agent,  without  any  notice  to  the  person  who  gave 
the  order,  is  not  an  acceptance,  so  as  to  render  the  order  binding.    Harvey  v 
Duffey,  99  Cal.  401,  33  Pac.  897. 

as  FELTHOUSE  v.  BINDLEY,  supra. 

2  8  CARLILL  V.  SMOKE-BALL  CO.  (1893)  1  Q.  B.  256. 

80  Brogden  v.  Railway  Co.,  L.  R.  2  App.  Cas.  691 ;  FIRST  NAT.  BANK  v. 
WATKINS,  154  Mass.  385,  28  N.  E.  275 ;  Lennox  v.  Murphy,  171  Mass.  870,  50 
N.  E.  644. 

81  Finch  V.  Mansfield,  97  Mass.  89;  Smith  v.  Edwards,  156  Mass.  221,  30  N. 
B.  1017;  Kelsea  v.  Manufacturing  Co.,  55  N.  J.  Law,  320,  26  Atl.  907.  22  L. 
R.  A.  415 ;  BOIT  v.  MAYBIN,  52  Ala.  252 ;  Sarbecker  v.  State,  65  Wis.  1  'I,  26 
N.  W.  541,  56  Am.  Rep.  624.    See  Brogden  v.  Railway  Co.,  2  App.  Cas.  666. 


24  OFFER  AND   ACCEPTANCE.  (Ch.  2 

cles,  or  for  information,  the  contract  is  complete  upon  transmission 
of  the  articles  or  the  information  to  the  offeror.^ ^  So,  as  we  have 
seen,  if  a  person  asks  another  to  work  for  him,  unless  a  particular 
form  of  acceptance  is  prescribed,  the  latter  may  accept  the  offer  sim- 
ply by  performing  the  service;*'  and  if  a  person  sends  goods  to  an- 
other, who  uses  them,  he  is  liable  to  pay  for  them.^*  Yet,  even 
where  the  offer  is  of  a  promise  for  an  act,  the  offeror  may,  of  course, 
make  communication  of  acceptance  a  condition  of  the  formation  of  a 
contract. 

An  apparent  exception  to  the  rule  that  performance  of  the  act  with- 
out notification  of  acceptance  completes  the  contract  is  found  in  the 
cases  which  hold  that  an  offer  to  guaranty  future  advances  to  be 
made  or  credit  to  be  extended  to  a  third  person,  and  the  like,  does 
not  ripen  into  a  contract  upon  the  making  of  the  advances  or  extend- 
ing the  credit,  but  that  notice  of  acceptance  by  the  guarantee  is  es- 
sential.*^ These  cases  have  been  put  upon  the  untenable  ground  that 
the  acceptance  of  the  offeree  must  be  signified  to  the  offeror  to  make 
a  binding  contract,  and  also  upon  the  ground  that  the  requirement 
of  notice  is  reasonable,  as  enabling  the  guarantor  to  know  the  nature 
and  extent  of  his  liability,  to  guard  himself  against  losses  which 
might  otherwise  be  unknown  to  him,  and  to  avail  himself  of  appro- 
priate means  to  compel  the  other  parties  to  discharge  him  from  future 
liabilities.  In  the  offer  of  a  guaranty,  it  seems  that  either  by  the 
custom  of  merchants,  or  perhaps  by  the  inherent  nature  of  the  trans- 
action, it  is  implied  in  the  offer  that  notice  shall  be  given  with  due 
diligence,  so  that  the  promisor  may  know  that  the  contract  has  been 
made.**^  The  cases,  however,  are  not  unanimous,  and  some  courts 
have  held  that  the  contract  is  complete  when  the  offer  has  been  acted 
upon,  and  that  notice  is  not  necessary.*^ 

On  the  other  hand,  where  the  offer  contemplates  a  promise  as  the 

s»  Post,  p.  3a  «»  Ante,  p.  15.  ^*  Ante,  p.  16. 

8  6  Edmoudston  v.  Drake,  5  Pet.  (U.  S.)  624,  8  L.  Ed.  251;  Adams  v.  Jones, 
12  Pet.  207,  9  L.  Ed.  1058;  Davis  v.  Wells,  104  U.  S.  159,  26  L.  Ed.  686; 
DAVIS  SEWING  MACHINE  CO.  v.  RICHARDS,  115  U.  S.  524,  6  Sup.  Ct  173, 
29  L.  Ed.  480 ;  Acme  Mfg.  Co.  v.  Reed,  197  Pa.  359,  47  Atl.  205,  80  Am.  St  Rep. 
832;  De  Cremer  v.  Anderson,  113  Mich.  578,  71  N.  W.  1090;  German  Sav. 
Bank  v.  Roofing  Co.,  112  Iowa,  184,  84  N.  W.  960,  51  L.  R.  A.  758  (full  citation 
of  cases). 

8  6  BISHOP  V.  EATON,  161  Mass.  496,  87  N.  E.  665,  42  Am.  St.  Rep.  437.  See, 
also,  Lennox  v.  Murphy,  171  Mass.  370,  50  N.  E.  644. 

37  Wilcox  V,  Draper,  12  Neb.  138,  10  N.  W.  579,  41  Am.  Rep.  763;  Lininger 
&  Metcalf  Co.  v.  Wheat,  49  Neb.  567,  68  N.  W.  941;  Farmers'  &  Mechanics' 
Bank  v.  Kercheval,  2  Mich.  504;  Crittenden  v.  Fiske,  46  Mich.  70,  8  N.  W. 
714,  41  Am.  Rep.  146;  Powers  v.  Bumcratz,  12  Ohio  St.  273;  (cf.  Wise  v. 
Miller,  45  Ohio  St.  388,  14  N.  E.  218):  Douglass  v.  Howland,  24  Wend.  (N. 
Y.)  35 ;  Union  Bank  v.  Coster's  Ex'rs,  3  N.  Y.  203,  53  Am.  Dec.  280.  See,  also, 
Mani-y  v.  Waxelbaum  Co.,  108  Ga.  14,  33  S.  E.  701. 


§§  18-20)  COMMUNICATION    OF   ACCEPTANCE.  25 

oonsideration  of  the  promise  of  the  offeror,  it  is  obvious  that  words 
or  conduct  upon  the  part  of  the  offeree  indicating  to  the  former  an 
agreement  to  be  bound  is  essential,  or  at  least  that  the  offeree  must 
indicate  his  intention  to  be  bound  by  some  overt  act,  not  necessarily 
an  act  brought  to  the  knowledge  of  the  offeror,  but  an  act  which, 
from  the  nature  and  terms  of  the  offer,  must  have  been  contemplated 
by  the  offeror  as  an  acceptance.  Thus,  where  the  defendants  wrote 
to  the  plaintiff,  who  had  furnished  an  estimate  for  fitting  up  their 
offices,  "Upon  an  agreement  to  finish  the  fitting  up  *  *  *  in  two 
weeks  from  date,  you  can  begin  at  once,"  but  countermanded  the 
offer  after  the  plaintiff  had  bought  lumber  and  begun  work  thereon, 
it  was  held  error  to  charge  the  jury  that  the  plaintiff  need  not  in- 
dicate to  the  defendants  his  acceptance  of  their  offer  and  that  the 
purchase  of  the  stuff  and  working  on  it  after  receiving  the  note  made 
a  binding  contract.^ ^  The  offer  contemplated  the  plaintiff's  promise 
or  agreement  to  finish  in  two  weeks  as  an  acceptance,  and  there  was 
nothing  in  his  conduct  that  indicated  to  the  defendants  his  agree- 
ment to  perform.  The  offeror  may,  however,  indicate  some  act  by 
which  the  offeree  may  manifest  his  intention  to  be  bound,  the  per- 
formance of  which,  without  actual  communication,  shall  be  sufficient 
as  an  acceptance,  and  when  the  offeree  has  thus  indicated  his  inten- 
tion the  contract  is  complete.  It  seems  that  the  rule  which  prevails 
in  regard  to  contracts  by  correspondence  must  rest  upon  this  ground.^ ^ 

Contract  by  Correspondence. 

It  is  now  settled  that  the  acceptance  in  case  of  contract  by  corre- 
spondence where  an  answer  is  invited  by  post  is  complete  as  soon 
as  the  letter  of  acceptance  is  dispatched.*"     Where  an  offer  is  made 

88  WHITE  V.  CORLIES,  46  N.  Y.  467. 

89  "I  have  always  believed  the  law  to  be  this,  that  when  an  offer  is  made 
to  another  party,  and  in  that  offer  there  is  .i  request,  expressed  or  implied, 
that  he  must  signify  his  acceptance  by  doing  some  particular  thing,  then  us 
soon  as  he  does  that  thing  he  is  bound.  If  a  man  sent  an  offer  abroad 
saying,  *I  wish  to  know  whether  you  will  supply  me  with  goods  at  such 
and  such  a  price,  and  if  you  agree  to  that  you  must  ship  the  first  cargo  as 
soon  as  you  get  this  letter,'  there  can  be  no  doubt  that  as  soon  as  the  cargo 
was  shipped  the  conti-act  would  be  complete,  and  if  the  cargo  went  to  the 
bottom  of  the  sea  it  would  go  to  the  bottom  of  the  sea  at  the  risk  of  the 
orderer.  So,  again,  where,  as  in  the  case  of  EX  PARTE  HARRIS,  IN  RE 
IMPERIAL  LAND  COMPANY  OF  MARSEILLES,  Law  Rep.  7  Ch.  App.  587, 
a  person  writes  a  letter  and  says,  'I  offer  to  take  an  allotment  of  shares,'  and 

.  be  expressly  or  impliedly  says,  *If  you  agree  with  me,  send  an  answer 
by  the  post,'  there,  as  soon  as  he  has  sent  that  answer  by  the  post,  and  put 
it  out  of  his  conti-ol,  and  done  an  extraneous  act  which  clinches  the  matter, 
and  shows  beyond  all  doubt  that  each  side  is  bound,  I  agree  the  contract  is 
perfectly  plain  and  clear."  Brogden  v.  Railway  Co.,  2  App.  Oaa.  666,  691,  per 
Lord  Blackburn. 

4  0  ADAMS  v.  LINDSELL,  1  Barn.  &  Aid.  681 ;  POTTER  v.  SANDERS,  6 
Hare,  1;  Levy  v.  Cohen,  4  Ga.  1;  TAYLOE  v.  INSURANCE  CO.,  9  How.  390, 


26  OFFER  AND  ACCEPTANCE.  (Ch.  2' 

by  post  it  may  be  assumed  that  an  answer  by  post  is  invited  unless 
the  contrary  is  indicated,  but  the  rule  is  not  necessarily  confined  to 
cases  where  the  offer  is  made  in  that  manner.  "Where  the  circum- 
stances are  such  that  it  must  have  been  within  the  contemplation  of 
the  parties  that,  according  to  the  ordinary  usages  of  mankind,  the 
post  might  be  used  as  a  means  of  communicating  the  acceptance  of 
an  offer,  the  acceptance  is  complete  as  soon  as  posted."  *^  The  rule 
has  not  been  established  without  vigorous  dissent.*^ 

There  was  at  first  some  hesitation  in  applying  this  rule  in  cases 
where  the  letter  of  acceptance  was  lost  or  delayed  in  transmission ; 
but  it  is  now  settled  by  the  great  weight  of  authority  that,  when  an 
acceptance  has  been  posted,  the  contract  is  complete,  and  cannot  be 
affected  by  the  subsequent  fate  of  the  letter.*^  "The  acceptor,"  it 
has  been  said,  "in  posting  the  letter  has  'put  it  out  of  his  control, 

13  L.  Ed.  187;  AVERILL  v.  HEDGE,  12  Conn.  424;  VASSAR  v.  OAMP,  11 
N.  Y.  441 ;  Darlington  Iron  Co.  v.  Foote  (C.  C.)  16  Fed.  646 ;  THOMSON  v. 
JAMES,  18  Dunl.,  B.  &  M.  1;  MINNESOTA  LINSEED  OIL  CO.  v.  LEAD 
CO.,  4  Dill.  431,  Fed.  Cas.  No.  9,635;  MACTIER'S  ADM'RS  v.  FRITH,  6 
Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  HARRIS'  CASE,  L.  R.  7  Ch.  587;  TRE- 
VOR V.  WOOD,  36  N.  Y.  307,  93  Am.  Dec.  511;  WHEAT  v.  GROSS,  31  Md. 
99,  103,  1  Am.  Rep.  28;  Ferrier  v.  Storer,  63  Iowa,  484,  19  N.  W.  288,  50  Am. 
Rep.  752;  Stockham  v.  Stockham,  32  Md.  196;  Moore  v.  Pierson,  6  Iowa,  279, 
71  Am.  Dec.  409;  Perry  v.  Iron  Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am.  St.  Rep. 
902;  Oilhoun  v.  Atchison,  4  Bush  (Ky.)  261,  96  Ava.  Dec.  299;  Hamilton  v. 
Insurance  Co.,  5  Pa.  339;  Abbott  y.  Shepard,  48  N.  H.  14;  Hunt  v.  Higman, 
70  Iowa,  406,  30  N.  W.  769;  Kempner  v.  Gohn,  47  Ark.  519,  1  S.  W.  869,  58 
Am.  Rep.  775;  Cobb  v.  Foree,  38  111.  App.  255.  Contra,  McCULLOCH  v.  IN- 
SURANCE CO.,  1  Pick.  (Mass.)  278  (but  see  BRAUER  v.  SHAW,  168  Mass. 
198,  46  N.  E.  617,  60  Am.  St  Rep.  387) ;  Scottish- American  Mortg.  Co.  v.  Davis 
(Tex.  Civ.  App.)  72  S.  W.  217  (notwithstanding  telegram  recalling  letter). 

*i  HBNTHORN  v.  ERASER  [1882]  2  Ch.  27,  per  Lord  Herschell. 

*2  See  dissenting  opinion  of  Bramwell,  L.  J.,  in  HOUSEHOLD  INS.  CO.  v. 
GRANT,  4  Exch.  Div.  221 ;  BRITISH  &  AM.  TEL.  CO.  v.  COLSON,  L.  R.  6 
Exch.  108;  McCULLOCH  v.  INSURANCE  CO.,  1  Pick.  (Mass.)  278;  Lang- 
dell.  Sum.  Cont.  §§  14,  15;    Parsons,  Cont.  (8th  Ed.,  Williston)  *484,  note  1. 

There  is  much  force  in  the  argument  that  communication  is  essential  to 
the  counter  promise  which  is  the  cou.sideration,  and  that  hence  the  acceptance 
cannot  take  effect  until  its  receipt.  Moreover,  granting  that  the  offeror  must 
be  taken  to  have  contemplated  that  the  post  may  be  used  as  a  means  of 
communicating  the  acceptance,  it  is  its  communication,  and  not  the  mere 
putting  it  in  course  to  be  communicated,  which  he  practically  contemplates. 
It  is  a  somewhat  violent  assumption  to  attribute  to  him  any  different  inten- 
tion than  that  which  would  be  expressed  by  making  the  offer  conditional 
upon  receipt  of  the  acceptance,  which  would  be  enforced. 

*8  HOUSEHOLD  INS.  CO.  v.  GRANT,  4  Exch.  Div.  221;  MACTIER'S 
ADM'RS  V.  FRITH,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  TAYLOE  v.  IN- 
SURANCE CO.,  9  How.  390,  13  L.  Ed.  187;  Washburn  v.  Fletcher,  42  Wis. 
152;  VASSAR  v.  OAMP,  11  N.  Y.  441;  Dunlop  v.  Higgins,  1  H.  L,  Cas.  381; 
Bryant  v.  B(x)ze,  55  Ga.  438;  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285; 
Duncan  v.  Topham.  8  C.  B.  225;   Chyti-aus  v.  Smith,  141  111.  231,  30  N.  E,  450; 


§  21)       CHARACTER,  MODE,  PLACE,  AND   TIME    OF   ACCEPTANCE.  27 

and  done  an  extraneous  act  which  clinches  the  matter,  and  shows  be- 
yond all  doubt  that  each  side  is  bound.'  How,  then,  can  a  casualty 
in  the  post,  whether  resulting  in  delay — which  in  commercial  trans- 
actions is  often  as  bad  as  no  delivery — or  in  nondelivery,  unbind  the 
parties  or  unmake  the  contract?"**  The  rule  is  the  same  where  the 
telegraph  is  properly  used  as  the  mode  of  signifying  acceptance,  and 
the  contract  is  complete  on  delivery  of  the  message  to  the  telegraph 
company.*'  This  rule,  of  course,  does  not  apply  where  the  offer 
expressly  or  by  implication  stipulates  that  the  contract  is  to  be  com- 
plete, and  the  offer  binding,  when  the  acceptance  is  received.  In  such 
a  case  the  mailing  of  the  acceptance  is  not  enough.*^  To  constitute 
an  acceptance,  however,  the  letter  must  be  actually  and  properly  post- 
ed. If  it  is  delivered  to  an  agent  of  the  acceptor,  and  he  neglects  to 
mail  it,  or  to  a  postman  not  authorized  to  receive  letters,  or  if  it  is  posted 
without  a  stamp,  or  improperly  addressed,  it  is  not  an  acceptance.*^ 

CHARACTER,  MODE,  PliACE,  AND   TIME  OF  ACCEPTANCE. 

21.    Tlie  acceptance  of  an  o£Per  to  result  in  a  contract  must  b&— 

(a)  Absolute  and   unconditional. 

(b)  Identical    -with    tbe    terms    of    the    offer. 

(o)    In  the  mode,  at  the  place,  and  within  the  time  expressly  or  im- 
pliedly required  by  the   offer. 

The  acceptance  of  an  offer  must  be  absolute,  and  identical  with  the 
terms  of  the  offer;  or,  as  it  has  been  expressed,  "an  acceptance  to 
be  good  must  in  every  respect  meet  and  correspond  with  the  offer, 
neither  falling  within  nor  going  be3''ond  the  terms  proposed,  but  ex- 
actly meeting  them  at  all  points  and  closing  with  them  just  as  they 
stand."  **     Unless  this  is  so,  there  is  no  meeting  of  minds  and  ex- 

Oollege  Mill  Co.  v.  Fidler  (Tenn.  Ch.)  58  S.  W.  382.  See,  contra,  BRITISH  & 
AM.  TEL.  CO.  V.  COLSON,  L.  R.  6  Exch.  108,  disapproved  in  Harris'  Case, 
supra. 

*4  HOUSEHOLD  INS.  CO.  v.  GRANT,  4  Exch.  Div.  221. 

4  6  MINNESOTA  LINSEED  OIL  CO.  v.  LEAD  CO.,  4  Dill.  431,  Fed.  Cas. 
No.  9,G35;  TREVOR  v.  WOOD,  36  N.  Y.  307,  93  Am.  Dec.  511;  BRAUER  v. 
SHAW,  168  Mass.  198,  46  N.  E.  617,  60  Am.  St.  Rep.  387. 

48VASSAR  V.  CAMP,  11  N.  Y.  441;  LEWIS  v.  BROWnInG,  130  Mass. 
173;   HAAS  v.  MYERS,  111  111.  421,  53  Am.  Rep.  634. 

*i  Henderson  v.  Coke  Co.,  140  U.  S.  25,  11  Sup.  Ct.  691,  35  L,  Ed.  332; 
Maclay  v.  Harvey,  90  111.  525,  32  Am.  Rep.  35;  Blake  v.  Insurance  Co.,  67  Tex. 
160,  2  S.  W.  368,  60  Am.  Rep.  15;  IN  RE  LONDON  &  N.  BANK  [1900]  1  Cb. 
220.  Deposit  of  a  letter  in  a  street  letter  box  is  equivalent  to  deposit  in  tbe 
post  office.  Wood  v.  Callagban,  61  Mich.  402,  28  N.  W.  162,  1  Am.  St.  Rep. 
597. 

*8Knowlton's  Anson.  Cont  22,  note;  ELIASON  v.  HENSHAW,  4  Wheat. 
225,  4  L.  Ed.  556;  Potts  v.  Whitehead,  23  N.  J.  Eq.  512;  Thomas  v.  Green- 
wood, 69  Mich.  215,  37  N.  W.  195;   MACTIER'S  ADM'RS  v.  FRITH,  6  Wend. 


28  OFFER  AND   ACCEPTANCE.  (Ch.  2 

pression  of  one  and  the  same  common  intention — the  intention  ex- 
pressed by  one  of  the  parties  is  either  doubtful  in  itself,  or  is  differ- 
ent from  that  of  the  other.  The  intention  of  the  parties  must  be 
distinct  and  common  to  both.*® 

If  a  person  offers  to  do  a  definite  thing,  and  the  person  to  whom 
the  offer  is  made  accepts  conditionally,  or  introduces  a  new  term  into 
the  acceptance,  his  answer  is  not  an  acceptance.  It  is  either  a  mere 
expression  of  willingness  to  treat,  or  it  is  in  effect  a  counter  ofEer.^*^ 
A  proposal  to  accept,  or  an  acceptance  varying  the  terms  from  those 
offered,  is  a  rejection  of  the  offer,  and  the  offer  is  then  no  longer 
open  to  acceptance.  °^ 

If  a  person  proposes  to  sell  another  property,  and  the  latter  ac- 
cepts "subject  to  the  terms  of  a  contract  being  arranged"  between 
their  solicitors,  there  is  no  agreement,  for  the  acceptance  is  not  final, 
but  subject  to  a  discussion  to  take  place  between  the  agents  of  the 
parties.^^  If  anything  is  left  for  future  arrangement,  the  parties 
have  not  agreed."'     It  is  not  to  be  understood  from  this  that  there 

(N.  Y.)  103,  21  Am.  Dec.  262;  Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W.  37; 
Jordan  v.  Norton,  4  Mees.  &  W.  155;  Corcoran  v.  White,  117  111.  118,  7  N.  B. 
525,  57  Am.  Rep.  858;  Siebold  v.  Davis,  67  Iowa,  560,  25  N.  W.  778;  Stagg  v. 
Oompton,  81  Ind.  171;  Corser  v.  Hale,  149  Pa.  274,  24  Atl.  285;  Wilkin  Mfg. 
Co.  V.  Lumber  Co.,  94  Mich.  158,  53  N.  W.  1045;  Wristen  v.  Bowles,  82  Cal. 
84,  22  Pac.  1136;  Scott  v.  Davis,  141  Mo.  213,  42  S.  W.  714;  Coad  v.  Rogers, 
115  Iowa,  478,  88  N.  W.  947;  SEYMOUR  v.  ARMSTRONG,  62  Kan.  720,  &i 
Pac.  612;  Shady  Hill  Nursery  Co.  v.  Waterer,  179  Mass.  318,  60  N.  E.  789, 
88  Am.  St.  Rep.  384.    See,  also,  the  cases  cited  in  following  notes. 

As  to  acceptance  by  a  person  other  than  the  one  to  whom  the  offer  was 
made,  see  post.  p.  199. 

49  Ante,  p.  2. 

60  Hough  v.  Brown,  19  N.  Y.  Ill;  Briggs  v.  Sizer,  30  N.  Y.  647;  Borland 
V.  Guffy,  1  Grant  (Pa.)  394;  Harlow  v.  Curtis,  121  Mass.  320;  MACLAY  v. 
HARVEY,  90  111.  525,  32  Am.  Rep.  35;  Hammond  v.  Winchester,  82  Ala.  470, 
2  South.  892;  Crabtree  v.  Opera-House  Co.  (C.  O.)  39  Fed.  746;  Hubbell  v. 
Palmer,  76  Mich.  441,  43  N.  W.  442;  Bristol  Aerated  Bread  Co.  v.  Maggs,  44 
Ch.  Div.  616;  Robertson  v.  Tapley,  48  Mo.  App.  239;  CROSSLEY  v.  MAY- 
COCK,  18  Eq.  180 ;  Mygatt  v.  Tarbell,  85  Wis.  457,  55  N.  W.  1031 ;  Jones  v. 
Daniel  [1894]  2  Ch.  332 ;  Davenport  v.  Newton,  71  Vt.  11,  42  Atl.  1087 ;  Russell 
V.  Manufacturing  Co.,  106  Wis.  329,  82  N.  W.  134 ;  Harris  v.  Scott,  67  N.  H.  437, 
32  Atl.  770 ;   Putuam  v.  Grace,  161  Mass.  237,  37  N.  E.  166. 

If  so  accepted  by  the  original  proposer,  it  becomes  a  binding  promise.  Es- 
may  v,  Gorton,  18  111.  483. 

51  MINNEAPOLIS  &  ST.  L,  RY.  CO.  V.  MILL  CO.,  119  U.  S.  149,  7  Sup. 
Ct.  168,  30  L.  Ed.  376;  HYDE  v.  WRENCH,  3  Beav.  334;  Virginia  Hot 
Springs  Co.  v.  Harrison,  93  Va.  569,  25  S.  E.  888;  James  v.  Darby,  100  Fed. 
224,  40  C.  C.  A.  341. 

B2  Honeyman  v.  Marryat,  6  H.  L.  Cas.  112.  It  seems  that  an  acceptance 
of  an  offer  to  sell  land,  "subject  to  the  title  being  approved  by"  the  acceptor's 
attorneys,  is  not  conditional.  Hussey  v.  Horne-Payue,  4  App.  Cas.  311,  8  Oh. 
Div.  070. 

0  3  Martin  v.  Fuel  Co.  (C.  C.)  22  Fed.  596;  APPLEBY  v.  JOHNSON,  L.  R. 
9  O.  P.  158;   Bank  of  Columbia  v.  Hagner,  1  Pet.  455,  7  L.  Ed.  219;   Utley  v. 


§  21)      CIIARAOTER,  MODE,  PLACE,    AND   TIME    OF   ACCEPTANCE.  29 

must  be  nothing  at  all  to  be  done  after  the  acceptance.  If  the  parties 
are  fully  agreed,  there  is  a  binding  contract,  notwithstanding  the  fact 
that  a  formal  contract  is  to  be  prepared  and  signed ;  "*  but  the  par- 
ties must  intend  the  agreement  to  be  binding.  If,  though  fully  agreed 
on  the  terms  of  their  contract,  they  do  not  intend  to  be  bound  until 
a  formal  contract  is  prepared  and  signed,  there  is  no  contract,  and 
the  circumstance  that  the  parties  do  intend  a  formal  contract  to  be 
drawn  up  is  strong  evidence  to  show  that  they  did  not  intend  the 
previous  negotiations  to  amount  to  an  agreement. °° 

An  offer  to  sell  a  specified  quantity  of  goods  cannot  be  made  bind- 
ing on  the  proposer  by  ordering  a  less  quantity,  for  there  is  no  offer 
to  sell  any  quantity  greater  or  less  than  that  specified. ^^  And  the 
same  is  true  where  the  offer  is  to  sell  a  certain  quantity  each  of 
several  articles,  and  the  person  to  whom  the  offer  is  made  orders  the 
specified  quantity  of  one  or  more  of  them,  but  declines  the  others. ^^ 
Nor  will  an  order  of  a  certain  quantity  of  goods,  accepted  by  sending 
a  less  quantity,  impose  any  liability  for  the  goods  sent.^*  So,  also, 
if  a  person  proposes  to  sell  land  to  another  for  a  certain  sum,  and 
the  latter  replies  that  he  will  give  a  less  sum,  there  is  nothing  bind- 
ing between  the  parties.^^  Again,  if  a  person  offers  to  sell  land,  say- 
ing nothing  as  to  the  place  of  payment,  and  the  acceptance  specifies 
that  payment  shall  be  made  at  the  acceptor's  place  of  residence,  there 
is  no  contract,  since,  under  the  offer,  the  proposer  would  be  entitled 
to  payment  at  his  place  of  residence.®" 

Donaldson,  94  U.  S.  29,  24  U  Ed.  54;  First  Nat.  Bank  v.  Hall,  101  U.  S.  43, 
25  L.  Ed.  822;  Brown  v.  N.  Y.  Central  R.  Co.,  44  N.  Y.  79;  Canton  Co.  v. 
Kailrond  Co.,  21  Md.  383,  396;  First  Nat.  Bank  v.  Clark,  61  Md.  40O,  48  Am. 
Rep.  114;  Bruce  v.  Bishop.  43  Vt.  161;  Sibley  v.  Felton.  156  Mass.  273,  31  N. 
E.  10 ;  Sparks  v.  Pittsburgh  Co.,  159  Pa.  295,  28  Atl.  152 ;  Stanley  v.  Dowdes- 
well,  L.  R.  10  G.  P.  102.    And  see  post,  p.  42. 

54  Ridgway  v.  Wharton,  6  H.  L.  Cas.  238;  Bolton  v.  Lambert,  41  Ch.  Div, 
295;  Bonnewell  v.  Jenkins,  8  Ch.  Div.  70,  73;  Cheney  v.  Transportation  Line, 
59  Md.  557;  Allen  v.  Chouteau,  102  Mo.  309.  14  S.  W.  869;  Lawrence  v.  Rail- 
road Co.,  84  Wis.  427,  54  N.  W.  797;  SANDERS  v.  FRUIT  CO.,  144  N.  Y.  209, 
39  N.  E.  75,  29  L.  R.  A.  431,  43  Am.  St.  Rep.  757. 

5  5  Ridgway  V.  Wharton,  6  H.  L.  Cas.  238;  Winn  v.  Bull,  7  Ch.  Div.  29; 
Wills  V.  Carpenter,  75  Md.  80,  25  Atl.  415;  Commercial  Tel.  Co.  v.  Smith,  47 
Hun  (N.  Y.)  494. 

56  MINNEAPOLIS  &  ST.  L.  RY.  CO.  v.  ROLLING-MILL  CO.,  119  U.  S 
149,  7  Sup.  Ot.  168,  30  L.  Ed.  376;  Michigan  Bolt  &  Nut  Co.  v.  Steel,  111  Mich 
153,  69  N.  W.  241. 

6  7  Thomas  v.  Greenwood,  69  Mich.  215,  37  N.  W.  195. 

68  Bruce  t.  Pearson,  3  Johns.  (N.  Y.)  534.  As  to  implied  contract  from  re- 
taining and  using  or  consuming  the  goods  so  sent,  see  ante,  p.  16,  and  note 
5. 

69  HYDE  V.  WRENCH,  3  Beav.  336.    And  see  post,  p.   36,  and  cases  cited. 

«o  BAKER  V.  HOLT.  56  Wis.  100,  14  N.  W^  8;  Sawyer  v.  Brossart,  67  Iowa. 
678,  25  N.  W   876,  5"^  Am.  Rep.  371;    Gilbert  v.  Baxter,  71  Iowa,  827,  32  N. 


30  OFFER  AND   ACCEPTANCB.  (Oh.  2 

Manner,  Place,  and  Time  of  Acceptance. 

It  is  also  essential  that  the  acceptance  shall  be  made  in  the  manner, 
at  the  place,  and  within  the  time  expressly  or  impliedly  designated 
in  the  offer.  The  proposer  has  the  right  to  dictate  terms  in  respect 
to  the  time,  place,  and  manner  of  acceptance ;  and  when  he  does  so, 
like  all  other  terms,  they  must  be  complied  with.  In  a  leading  case 
on  this  point  the  defendant  offered  to  buy  flour  from  the  plaintiffs, 
stating  in  his  offer  that  the  answer  should  be  sent  by  return  of  the 
wagon  which  brought  the  offer.  The  plaintiffs,  instead  of  sending 
their  acceptance  by  the  wagon,  mailed  it  to  the  defendant  at  a  place 
other  than  the  destination  of  the  wagon,  where  it  was  duly  received 
by  him.  It  was  held,  however,  that  he  was  not  bound  by  the  ac- 
ceptance, as  it  was  not  sent  to  the  place  prescribed.®^  If  an  offer 
asks  that  the  answer  be  sent  by  the  messenger  who  brings  the  offer, 
or  by  mail,  or  by  telegraph,  it  must  be  so  sent,  to  be  effective.®^  An 
answer  by  mail  is  insufficient  if  the  telegraph  is  the  mode  prescribed.®^ 
An  offer  by  mail,  which  says  nothing  as  to  the  mode  of  sending  the 
answer,  impliedly  requires  an  answer  by  mail,  or  possibly  authorizes 
one  by  telegraph,®*  though  an  acceptance  sent  by  any  other  mode, 
and  reaching  the  proposer  within  a  reasonable  time,  might  be  held 
sufficient.®^  An  offer  by  telegraph  impliedly  requires  an  answer  by 
telegraph,  and  an  answer  by  mail  will  not  be  sufficient. 

If  the  offer  specifies  a  time  for  acceptance,  it  is  a  term  of  the  offer, 
and  an  acceptance  after  the  specified  time  will  have  no  effect.®®  An 
offer  by  correspondence,  for  instance,  calling  for  an  answer  "in  course 


W.  3&4;  Langellier  v.  Schaefer,  36  Minn.  361,  31  N.  W.  690;  Robinson  v. 
Weller,  81  Ga.  704,  8  S.  E.  447;    Maynard  v.  Tabor,  53  Me.  511. 

61  Eliason  v.  Henshaw,  4  Wheat.  225,  4  L.  Ed.  556.  Where  a  person  resid- 
ing in  one  state  makes  a  written  offer  to  a  person  residing  in  another,  and 
at  a  distance,  to  sell  lands,  without  arranging  for  a  personal  meeting,  an  ac- 
ceptance by  mail  is  authorized.     Wilcox  v.  Cline,  70  Mich.  517,  38  N.  W.  555. 

8  2  Carr  v.  Duval,  14  Pet.  83,  10  L.  Ed.  361.  Putting  a  letter  of  acceptance 
in  the  private  letter  box  of  the  proposer  has  been  held  sufficient.  Howard  v. 
Daly,  61  N.  Y.  362.  19  Am.  Rep.  285.  As  to  what  constitutes  mailing  a  letter, 
see  ante,  p.  27,  note  47. 

6  3  HORNB  V.  NIVER,  168  Mass.  4,  46  N.  E.  393. 

64  MACTIER'S  EX'RS  v.  FRITH,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262; 
VASSAR  V.  CAMP,  11  N.  Y.  441;  TAYLOE  v.  INSURANCE  CO.,  9  How. 
390,  13  L.  Ed.  187;  Wilcox  v.  Cline,  70  Mich.  517,  38  N.  W.  555;  TREVOR 
V.  WOOD,  36  N.  Y.  307,  93  Am.  Dec.  511. 

6s  lYounstine  v.  Sellers,  35  Kan.  447,  11  Pac.  441. 

«6  Long  worth  v.  Mitchell,  26  Ohio  St.  334;  Potts  v.  Whitehead,  20  N.  J. 
Eq.  55;  Britton  v.  Phillips,  24  How.  Prac.  (N.  Y.)  Ill;  Richardson  v.  Hard- 
wick,  106  U.  S.  252,  1  Sup.  Ct.  213,  27  L.  Ed.  145;  Union  Nat  Bank  v.  Miller, 
106  N.  a  347,  11  S.  E.  321,  19  Am.  St.  Rep.  538;  Weaver  v.  Burr,  31  W.  Va. 
736.  8  S.  E.  743,  3  L.  R.  A.  94;  Cummings  v.  Realty  Co.,  86  Wis.  382,  57  N. 
W.  43.     And  see  Park  v.  Whitney,  148  Mass.  278,  19  N.  E.  161. 


§§  22-23)  REVOCATION    OF   OFFER.  31 

of  post,"  or  "by  return  mail,"  must  be  accepted  by  return  mail.''' 
It  may  safely  be  said  that  any  substantial  delay  will  be  fatal,  even  where 
an  answer  by  "return  mail"  is  not  requested.  An  acceptance  sent  three 
or  four  days  after  the  receipt  of  the  offer  has  been  held  too  late,  and 
there  seems  no  reason  to  doubt  that  a  delay  of  one  day  would  be 
equally  fatal."®  If  no  time  for  acceptance  is  specified,  then  a  reason- 
able time  is  implied. *'°  What  is  a  reasonable  time  must  necessarily 
depend  on  the  nature  of  the  offer  and  the  circumstances  of  each  par- 
ticular case.  ^ 

REVOCATION  OF  OFFER. 

22.  Until  the  moment  of  acceptance,  an  ofPer  may  be  revoked,  and  a 

subsequent   acceptance   will   be   inoperative,   except   tbat — 
EXCEPTION — An  offer  under  seal  cannot  be  revoked  at  coniraon  law. 

23.  Notice   of   revocation   must   be   communicated,   to   prevent   an   ac- 

ceptance from  being  effective. 

*^        Since  an  offer,  unaccepted,  creates  no  rights,  it  follows  that  it  may 
be  revoked  at  any  time  before  acceptance.^ '^     An  order,  for  instance, 

6  7  DUNLOP  V.  HIGGINS,  1  H.  L.  Cas.  387;  Carr  v.  Duval,  14  Pet. 
83,  10  L.  Ed.  361;  MAOLAY  v.  HARVEY,  90  111.  52.5,  32  Am.  Rep.  35; 
AVERILL  V.  HEDGE,  12  Conn.  424;  TINN  v.  HOFFMAN,  29  Law  T.  (N. 
S.)  271.  Cf.  Palmer  v.  Insm-ance  Co.,  84  N.  Y.  63.  If  the  delivery  of  a  letter 
containing  an  offer  is  delayed  through  the  sender's  fault,  or,  it  may  no  doubt 
be,  vpithout  the  fault  of  either  party,  an  acceptance  as  soon  as  the  letter  is 
received  is  in  time.  It  is  by  return  mail.  See  Leake,  Cont.  18;  ADAMS  v. 
LINDSELL,  1  Barn.  &  Aid.  681. 

68  Taylor  v.  Rennie,  35  Barb.  (N.  Y.)  272;  MINNESOTA  LINSEED  OIL 
CO.  V.  LEAD  CO.,  4  Dill.  435,  Fed.  Cas.  No.  9,635;  MACLAY  v.  HARVEY, 
90  111.  525,  32  Am.  Rep.  35;  Ortman  v.  Weaver  (C.  C.)  11  Fed.  358;  DUNLOP 
V.  HIGGINS,  1  H.  L.  Cas.  387. 

69  RAMSGATE  HOTEL  CO.  V.  MONTEFIORE,  L.  R.  1  Bxch.  109;  MINNE- 
SOTA LINSEED  OIL  CO.  v.  LEAD  CO.,  4  Dill.  431,  Fed.  Cas.  No.  9,635; 
Ferrier  v.  Storer,  63  Iowa,  484,  19  N.  W.  288,  50  Am.  Rep.  752;  AVERILL  v. 
HEDGE,  12  Conn.  424;  Trovmstine  v.  Sellers,  35  Kan.  447,  11  Pac.  441;  Mc- 
Oracken  v.  Harned,  66  N.  J.  Law,  37,  48  Atl.  513;  Sanford  v.  Howard,  29 
Ala.  684,  68  Am.  Dec.  101;  Lehigh  Valley  Coal  Co.  v.  Curtis,  22  111.  App. 
394;  CHICAGO  &  G.  E.  R.  CO.  v.  DANE,  43  N.  Y.  240;  Kempner  v.  Cohn, 
47  Ark.  519,  1  S.  W.  869,  58  Am.  Rep.  775;  Stone  v.  Harmon,  31  mnn.  512, 
19  N,  W.  88;  Omaha  Loan  &  Tlnist  Co.  v.  Goodman,  62  Neb.  197,  86  N.  W. 
1082,  This  has  been  held  to  apply  to  offers  of  a  reward  to  the  public  gen- 
erally by  way  of  advertisement  LORING  v.  CITY  OP  BOSTON,  7  Mete. 
(Mass.)  409.     But  see  post,  p.  39. 

7  0  PAYNE  V.  CAVE,  3  Term  R.  148;  OFFORD  v.  DAVIES,  12  C.  B.  (N. 
S.)  748;  COUNTESS  OF  DUNMORB  v.  ALEXANDER,  9  Shaw,  D.  &  B.  190; 
QUICK  V.  WHEELER,  78  N.  Y.  300;  Houghwout  v.  Boisaubin,  18  N.  J.  Eq. 
315:  SCHENECTADY  STOVE  CO.  v.  HOLBROOK,  101  N.  Y.  45,  4  N.  B.  4; 
WHEAT  V.  CROSS,  31  Md.  99,  1  Am.  Rep.  28;  BOSTON  &  M.  R.  R.  CO.  v. 
BARTLETT,  3  Cush.  (Mass.)  224;  Weiden  v.  Woodruff,  38  Mich.  130;  Lar- 
mou  v.  Jordan,  56  111.  204;   Crocker  v.  Railroad  Co.,  24  Conn.  249;   Martin  v. 


32  OFFER  AND  ACCEPTANCE.  (Ch.  2 

given  to  the  agent  of  the  party  to  whom  it  is  made,  who  has  no  au- 
thority to  accept  it,  is  revocable  at  any  time  before  his  principal  ac- 
cepts it;  and  it  is  immaterial  that  the  order  recites  that  it  is  taken 
with  the  understanding-  th^t  it  is  positive,  and  not  subject  to  change 
or  countermand. '^^  Where  an  offer  is  made  to  several  persons,  it 
must  be  accepted  by  all  befQr£.Jt_becQm£s  binding  on  the  proposer, 
for  an  acceptance  by  less  than  all  is  not  a  compliance  with  the  terms 
of  the  offer;  and  it  follows  that  such_an  ofifer  may  he  revoked-at 
any  time  before  it  is  accepted  by  allJ" 

Oifer  under  Seal. 

An  offer  made  under  seal  cannot  be  revoked  at  common  law.  Even 
though  uncommunicated  to  the  other  party,  it  seems  that  it  remains 
open  for  his  acceptance  when  he  becomes  aware  of  it.  This  results 
from  the  common-law  rule  that  a  grant  under  seal  is  binding  on  the 
grantor  and  those  who  claim  under  him,  although  it  was  never  com- 
municated to  the  grantee,  if  it  has  been  duly  delivered ;  and  an  obliga- 
tion created  by  deed,  it  seems,  stands  upon  the  same  footing.  Where, 
for  instance,  a  policy  of  marine  insurance  was  executed  by  the  in- 
surers, and  delivered  to  their  clerk  to  be  kept  till  the  insured  called 
for  it,  and  was  never  accepted  by  the  insured  till  he  claimed  the  bene- 
fit of  it  on  learning  of  the  loss  of  the  ship,  it  was  held  that  the  policy 
w^as  binding  on  the  insurers.  "It  is  clear  on  the  authorities,"  it  was 
said,  "as  well  as  the  reason  of  the  thing,  that  the  deed  is  binding  on 
the  obligor  before  it  comes  into  the  custody  of  the  obligee,  nay,  be- 
fore he  even  knows  of  it;  though  of  course,  if  he  has  not  previously 
assented  to  the  making  of  the  deed,  the  obligee  may  refuse  it."  ''* 
"The  position  of  the  parties  in  such  a  case  is  anomalous.  There  can 
be  no  agreement  where  there,  is  no  mutual  assent.  The  position  of 
the  promisor  is  that  of  one  who  has  made  an  offer  which  he  cannot 
withdraw,  or  a  conditional  promise  depending  for  its  binding  force 
on  the  assent  of  the  promisee."  ''* 

In  the  United  States  it  is  generally  held  that  deli^fixy— of  a  deed  is 

Hudson,  81  Cal.  42,  22  Pac.  292;  Miller  y.  Douville,  45  La.  Ann.  214,  12  South. 
132;  Eski-idge  v.  Glover,  5  Stew.  «&  P.  (Ala.)  264,  20  Am.  Dec.  344;  Trucker 
V.  Lawrence,  56  Vt.  467;  BENTON  v.  ASSOCIATION,  170  Mass.  534,  49  N.  E. 
928,  64  Am.  St.  Rep.  320.  The  addition  of  a  new  term  to  an  off  ex*  is  a  revo- 
cation of  that  offer.     Travis  v.  Insurance  Co.,  104  Fed.  486,  43  C.  C.  A.  653. 

Ti  National  Refining  Co.  v.  Miller,  1  S.  D.  548,  47  N.  W.  962.  And  see 
Challenge  Wind  &  Feed  Mill  Co.  v.  Kerr,  93  Mich.  328,  53  N.  W.  555;  Harvey 
T.  Duffey,  99  Cal.'  401,  33  Pac.  897. 

7  2  Burton  v.  Shotwell,  13  Bush  (Ky.)  271. 

T3  XENOS  V.  WIOKHAM,  L.  R.  2  H.  L.  296.  See,  also,  BUTLER  & 
BAKER'S  CASE,  3  Coke,  26b;  ROBERTS  v.  SECURITY  OO.  [1897]  1  Q.  B. 
IIL 

7*  Anson,  Cont.  (8th  Ed.)  32. 


§§  22-23)  REVOCATION   OF  OFFER.  33 

nj2t__cornplete_vvithout  acceptance  by  the  grarjifie/"  and  the  effect  of  a 
mere  offer  under  seal,  uncomniunicatcd  to  the  offeree,  does  not  ap- 
pear to  have  arisen.  Where,  however,  an  offer  under  seal,  in  the 
form  of  an  option,  is  delivered  to  the  offeree,  the  doctrine  that  it 
cannot  be  revoked  applies,  and  if  the  option  is  exercised  by  acceptance 
of  the  offer  within  the  time  limited  the  agreement  will  be  specifically 
enforced  or  damages  may  be  recovered  for  its  breach,'^' 

Agreement  to  Hold  Offer  Open — "Refusals"  and  "Options." 

An  offer,  though  coupled  with  a  promise  to  hold  it  open  for  ac- 
ceptance for  a  specified  time,  may  nevertheless  be  revoked  or  with- 
drawn before  the  time  has  expired,  provided  there  is  no  consideration 
for  the  promise  to  hold  the  offer  open.'^  Cases  of  this  kind  arise 
where  a  person  gives  another  the  "refusal"  of  land  or  goods  for  a 
certain  tim-e,  or  an  option  to  buy.  If  the  promise  to  keep  an  offer 
open  for  a  specified  time  is  supported  by  a  valid  consideration — as 
where  money  is  paid  or  promised  for  the  option  or  refusal — the  prom- 
ise constitutes  a  contract  in  itself,  and,  of  course,  is  binding.''*  A 
failure  to  keep  the  offer  open  would  be  a  breach  of  contract  for 
which  an  action  for  damages  would  lie,  or,  upon  acceptance,  a  suit 
for  specific  performance.''® 

Communication  of  Revocation. 

Revocation  must  be  communicated,  or  at  least  brought  to  the  knowl- 
edge of  the  offeree,  to  have  any  eft'ect.  As  we  have  seen,  an  ac- 
ceptance may  take  effect  at  the  moment  it  is  dispatched.     A  revoca- 

7  5  Post,  p.  55. 

7  6  Willard  v.  Tayloe,  8  Wall.  (U.  S.)  557,  19  L.  Ed.  501;  O'Brien  v.  Bolond, 
166  Mass.  481,  44  N.  E.  602;  MANSFIELD  v.  HODGDON,  147  Mass.  304,  17 
N.  E.  544;  McMILLAN  v.  AMES,  33  Miun.  257,  22  N.  W  612;  Hayes  v 
O'Brien,  149  111.  403,  37  N.  E.  73,  23  L.  R.  A.  555;   9  Gyc.  Law  &  Proc.  287. 

7  7  COOKE  V.  OXLEY,  3  Term  R.  653  (as  to  this  case,  see  post,  p.  35,  note 
84);  ROUTLEDGE  v.  GRANT,  4  Bing.  653;  HEAD  v.  DIGGON,  3  Man.  & 
R.  97;  STEVENSON  v.  McLEAN,  5  Q.  B.  Div.  351;  DICKINSON  v.  DODDS, 
2  Ch.  Div.  463;  CHICAGO  &  G.  E.  R.  CO.  v.  DANE,  43  N.  Y.  240;  STENS- 
GAARD  V.  SMITH,  43  Minn.  11,  44  N.  W.  G69;  COLEMAN  v.  APPLE- 
GARTH,  68  Md.  21,  11  Atl.  284,  6  Am.  St.  Rep.  417;  Eskridge  v.  Glover,  5 
Stew.  &  P.  (Ala.)  264,  26  Am.  Dec.  344;  Larmon  v.  Jordan,  56  111.  206; 
Weiden  v.  Woodruff,  38  Mich.  130;  Klee  v.  Grant,  4  Misc.  Rep.  88,  23  N.  Y. 
Snpp.  855;  Connor  v.  Renneker,  25  S.  C.  514;  Sault  Ste.  M.,  L.  &  I.  Co.  v. 
Simons  (C.  C.)  41  Fed.  835;  Weaver  v.  Burr.  31  W.  Va.  736,  8  S.  E.  743,  3  L. 
R.  A.  94 ;   Brown  v.  Savings  Union,  134  Cal.  448,  66  Pae.  592 ;   post,  p.  119. 

7s  Grabenhorst  v.  Nicodemus,  42  Md.  236;  Stitt  v.  Huidekopers,  17  Wall. 
384,  21  L.  Ed.  644;  Bradford  v.  Foster,  87  Tenn.  4,  9  S.  W.  195;  Chadsey  v. 
Coudley,  62  Kan.  853,  62  Pae.  603. 

7  9  Zimmerman  v.  Brown  (N.  J.  Ch.)  36  Atl.  675;    Chadsey  v.  Condley,  62 
Kan.  853,  62  Pae.  663.     And  see  cases  cited  note  76.      But  see  Litz  v.  Goos- 
ling,  93  Ky.  185,  19  S.  W.  527,  21  L.  R.  A.  127;   Graybill  v.  Brugh,  89  Va.  895, 
17  S.  E.  558,  21  L.  R.  A.  133,  37  Am.  St.  Rep.  894. 
Clakk  Cont.  (2d  Ed.) — 3 


34  OFFER  AND  ACCEPTANCE,  (Ch.  2 

tion,  on  the  contrary,  is  not  effective  until  the  moment  it  is  received. 
A  person,  therefore,  who  has  accepted  an  offer  not  known  by  him 
to  have  been  revoked,  may  safely  act  on  the  footing-  that  the  offer 
and  acceptance  constitute  a  contract  binding  on  both  parties.  A  per- 
son who  has  received  an  offer  by  post  or  telegraph,  and  posted  or 
telegraphed  his  acceptance,  has  thereby  created  a  binding  contract, 
though  notice  of  revocation  of  the  offer  has  been  mailed  or  wired  to 
him  before  his  acceptance.®"  The  law,  it  is  said,  regards  the  pro- 
poser as  making  his  offer  during  every  instant  of  time  that  his  letter 
is  traveling,  and  durm^^he  period  that  may  be  considered  as  a  rea- 
sonable time  for  -acceptances  The  party  to  whom  the  offer  is  made 
is  therefore  entitled  to  consider  that  it  is  still  being  made,  unless  he 
has  notice  to  the  contrary,  and  that  his  acceptance  concludes  a  bind- 
ing contract.  The  revocation  cannot  be  held  to  be  communicated 
merely  because  it  has  been  put  in  the  course  of  transmission.  If, 
after  an  offer  has  been  posted,  or  sent  by  any  other  means,  the  pro- 
poser sends  a  withdrawal  by  such  means  that  it  reaches  the  person 
to  whom  the  offer  was  sent  at  the  same  time  as  the  offer,_jthis  is  a 
good  revogation,  and  an  acceptance~of  the  oft"er~will  be~ineffectual.®^ 

There  has  been  some  difficulty  in  cases  in  which  the  offeror  has 
done  some  act  indicating  an  intention  to  retract,  as  by  a  sale  of  prop- 
erty offered,  putting  it  out  of  his  power  to  perform,  but  without  com- 
municating his  revocation.  It  is  probably  settled  that  any.xt¥£rt  act 
clearly  showing  an  intention  to  revoke  is  enough,  provided  the  per- 
son to  whom  the  offer  was  made  has  notice  of  such  act  before  he 
accepts.  The  revocation  need  not  be  communicated,  but  it  is  suffi- 
cient if  he  has  knowledge  of  acts  clearly  indicating  an  intention  to 
revoke.®^  It  is  not  clearly  settled  what  would  be  sufficient  notice. 
It  might  probably  be  said  that  the  notice  must  be  such  as  reasonably 
amounts    to    knowledge    of  -acts    inconsistent    with    the    continuance 

80  BYRNE  V.  TIENHOVEN.  5  C.  P.  Div.  349;  HENTHORN  v.  KRAZER 
[1892]  66  L.  T.  (N.  S.)  439,  2  Ch.  27;  HARRIS'  CASE,  L.  R.  7  Ch.  App. 
587;  TAYLOE  v.  INSURANCE  CO.,  9  How.  390,  13  L.  Ed.  187;  Patrick 
V.  Bowman,  149  U.  S.  411,  13  Sup.  Ct.  811,  8G6,  37  L.  Ed.  790;  Hamilton  v. 
Insurance  Co.,  5  Pa.  342;  Lungstrass  v.  Insurance  Co..  48  Mo.  201,  8  Am.  Rep. 
100;  Kempner  v.  Cohn,  47  Ark.  519,  1  S.  W.  8U9,  58  Am.  Rep.  775;  WHEAT  v. 
CROSS,  31  Md.  99,  1  Am.  Rep.  28;  HALLOCK  v.  INSURANCE  CO.,  26  N.  J. 
Law,  268;  Faulkner  v.  Hebard,  26  Vt.  452;  McCotter  v.  City  of  New  lork,  37 
N.  Y.  325;  Weiden  v.  Woodruff,  38  Mich.  130;  Crocker  v.  Railroad  Co.,  24 
Conn.  249;  Cobb  v.  Foree,  38  111.  App.  255;  BRAUER  v.  SHAW,  168  Mass. 
198,  46  N.  E.  617,  60  Am.  St.  Rep.  387. 

81  DUNMORE  V.  ALEXANDER,  9  Shaw  &  D.  190.  Suppose,  however,  the 
letter  containing  the  offer  should  be  read,  and  an  acceptance  dispatched  in 
good  faith,  before  the  letter  containing  the  withdrawal  is  opened.  It  would 
seem,  on  principle,  that  in  such  a  case  the  acceptance  must  be  effectual. 

82  DICKINSON  V.  DODDS,  2  Ch.  Div.  463;  COLEMAN  y.  APPLEGARTH, 
68  Md.  21,  11  Atl.  284,  6  Am.  St.  Rep.  417. 


§§  22-23)  REVOCATION   OF   OFFER.  35 

of  the  offer.  In  case  of  an  offer  to  sell  specific  property,  actual 
knowledge  of  its  sale  to  another  would  clearly  show  an  intent  to  re- 
voke, but  it  is  doubtful  whether  information  from  a  stranger  that 
such  a  sale  has  been  made,  or  that  the  proposer  has  changed  his  mind, 
would  be  sufficient,  as  it  would  scarcely  be  reasonable  to  require  a 
man  to  believe  and  act  on  such  statements.  In  the  absence  of  suffi- 
cient notice  or  knowledge  of  a  revocation,  the  offer,  according  to 
the  better  doctrine  and  the  weight  of  authority,  continues  open  and 
will  be  turned  into  a  binding  promise  by  its  acceptance. ^^  Some 
courts,  however,  seem  to  have  held,  contrary  to  reason  and  principle, 
that  notice  of  withdrawal  is  not  necessary.**  Where  the  parties  are 
dealing  with  each  other  at  a  distance  by  correspondence,  it  is  the 
settled  law,  in  these  as  in  other  cases,  that  the  offer  continues  open 
until  notice  of  its  withdrawal  is  not  only  sent,  but  received  by  the 
party  to  whom  it  was  made,  and  is  turned  into  a  binding  promise  if 
accepted  before  receipt  of  the  notice.*^  Knowledge  in  these  cases 
also  may  be  equivalent  to  notice  sent  and  received. 

The  case  of  an  offer  made  to  the  public  generally  by  publication 

8«  BOSTON  &  M.  R.  R.  CO.  V.  BARTLETT,  3  Cush.  (Mass.)  224,  225; 
GREAT  NORTHERN  R.  CO.  v.  WITHAM,  L.  R.  9  C.  P.  16;  Eskridge  v. 
Glover,  5  Stew.  &  P.  (Ala.)  264,  26  Am.  Dec.  344;  Houghwout  v.  Boisaubin,  18 
N.  J.  Eq.  318;  HENTHORN  v.  FRAZER  [1892]  66  L.  T.  (N.  S.)  439,  2  Ch.  27; 
Cheney  v.  Cook,  7  Wis.  413;  School  Directors  v.  Trefethren,  10  111.  App.  127; 
Paddock  v.  Davenport,  107  N.  C.  710,  12  S.  E.  464;  Wall  v.  Railroad  Co.,  86 
Wis.  48,  56  N.  W.  367.  And  see  Dambmann  v.  Lorentz,  70  Md.  380,  17  Atl. 
389,  14  Am.  St.  Rep.  364.     See,  also,  post,  p.  119. 

84  Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190,  7  Am.  Dec.  305;  Bean  v.  Bur- 
bank,  16  Me.  458,  33  Am.  Dec.  681;  Gillespie  v.  Edmonston,  11  Humph. 
(Tenn.)  553.  And  see  COOKE  v.  OXLEY,  3  Term  R.  653.  This  case  has 
been  very  much  criticised  and  disapproved  in  so  far  as  it  seems  to  hold  that, 
where  an  offer  gives  a  specified  time  within  which  it  may  be  accepted,  an 
acceptance  within  that  time,  without  notice  that  the  offer  has  been  revoked, 
does  not  bind;  that  is  to  say,  that  notice  of  the  revocation  is  not  necessary. 
If  the  case  was  intended  to  go  this  far,  it  is  not  considered  as  authority  In 
this  country.  BOSTON  &  M.  R.  R.  CO,  v.  BARTLETT,  3  Cush.  (Mass.)  224. 
Nor,  it  seems,  is  it  followed,  even  In  England,  to  such  an  extent  as  we  have 
suggested.  Indeed,  a  later  English  case  says:  "All  that  COOKE  v.  OXLEY 
aifirms  is  that  a  party  who  gives  time  to  another  to  accept  or  reject  a  pro- 
posal is  not  bound  to  wait  till  ,the  time  expires.  ♦  *  *  The  offer  may  be 
revoked  before  acceptance.  If  the  offer  is  not  retracted,  it  is  in  force  as  a 
continuing  offer  till  the  time  of  accepting  or  rejecting  it  has  arrived."  STE- 
VENSON V.  McLEAN,  5  Q.  B.  Div.  351.  If  the  case  of  COOKE  v.  OXLEY 
mei'ely  decides  that  an  offer,  coupled  with  a  promise  to  keep  it  open  for  a 
specified  time,  may  be  revoked,  to  the  knowledge  of  the  other  party,  before 
the  time  has  expired,  where  there  is  no  consideration  for  the  pi-omise  to 
keep  it  open,  it  is  in  accord  with  the  law  in  this  country,  and  with  the  later 
decisions  in  England. 

85  Hamilton  v.  Insurance  Co.,  5  Pa.  339;  Larmon  v.  Jordan,  56  111.  204; 
AYERILL  V.  HEDGE,  12  Conn.  434;  Moore  v.  Pierson,  6  Iowa,  279,  71  Am. 
Dec.  409  ;  ante,  pp.  25-27. 


36  OFFER  AND  ACCEPTANCE.  (Cb.  2 

stands  on  a  different  footing  from  an  offer  made  directly  to  a  definite 
person.  Such  an  offer  may  be  revoked  in  the  manner  in  which  it 
was  made.^' 

LAPSE   OF   OFFER, 

24.   An  offer  -trill  lapse,  and  so  be  determined  turitliont  express  revoca- 
tion,  so   tliat   a   subsequent   acceptance  -nrill   have    no   effect — 

(a)  On  the  efflux  of  a  time  specified  for  acceptance,  or  of  a  reasonable 

time  where  no  time  is  specified; 

(b)  On  its  rejection; 

(c)  On  failure  of  tbe  acceptance  to  comply  xritb  tbe  terms  of  tbe 

offer,  Trhicli  is  equivalent  to  rejection; 

(d)  On  the  death  or  insanity  of  either  party  before  acceptance. 

An  offer  *may  lapse  and  be  determined  by  the  efflux  of  a  specified 
time  for  acceptance.  If  a  person  should  offer  to  sell  goods  "if  the 
offer  is  accepted  by"  a  certain  day,  an  acceptance  after  that  time  would 
have  no  effect.  After  the  specified  time  has  passed  without  accept- 
ance, the  offer  lapses,  or  is  determined  without  any  further  action  on 
the  part  of  the  proposer,  and  it  is  no  longer  open  for  acceptance.*^ 
If  no  time  is  specified,  the  offer  is  determined  by  the  lapse  of  a  rea- 
sonable time.^* 

The  rejection  or  refusal  of  an  offer  by  the  person  to  whom  it  is 
made  causes  the  offer  to  lapse.  In  order  that  an  acceptance  may  be 
effective  after  a  refusal,  the  offer  must  have  been  renewed  by  the 
proposer.*® 

So,  also,  a  failure  to  comply  with  a  condition  of  the  offer  as  to  the 
mode  of  acceptance,  or  an  acceptance  conditionally,  or  on  terms  vary- 
ing from  those  offered,  will  cause  the  offer  to  lapse,  for  this  is,  in 
effect,  a  rejection  of  the  offer.®"     Thus,  where  a  person  offered  to 

86  SHUEY  V.  UNITED  STATES,  92  U.  S.  73,  23  L.  Ed.  697. 

87  Ante,  p.  31,  and  cases  cited  in  notes  68,  69. 

8  8  RAMSGATE  HOTEL  CO.  V.  MONTEFIORB,  1  Excb.  109;  LORING  v. 
CITY  OF  BOSTON,  7  Mete.  (Mass.)  409;  ante,  p.  31,  and  cases  cited  in 
notes  68,  69.    Continuing  offer.    Sheiiey  v.  Peelil,  84  Wis.  46,  54  N.  W.  267. 

89TINN  V.  HOFFMAN,  29  Law  T.  (N.  S.)  271;  HYDE  v.  WRENCH,  3 
Beav.  334;  Davis  v.  Parish,  Litt  Sel.  Cas.  (Ky.)  153,  12  Am.  Dec.  287;  W. 
&  H.  M.  Goulding  v.  Hammond,  4  C.  C.  A.  533,  54  Fed.  639;  Slieffleld  Canal 
Co.  T.  Sheffield  &  R.  Ry.  Co.,  3  Ry.  Cas.  121,  132;  Arthur  v.  Gordon  (C.  C.)  37 
Fed.  .558;   Richardson  v.  Lenhard,  48  Kan.  020,  29  Pae.  1076. 

9  0  HYDE  V.  WRENCH,  3  Beav.  336;  First  Nat.  Bank  v.  Hall,  101  U.  S.  50, 
25  L.  Ed.  822;  MINNE.^lPOLIS  &  ST.  L.  RY.  CO.  V.  ROLLING-MILL  CO., 
119  U.  S,  149,  7  Sup.  Ct.  168,  30  L.  Ed.  376;  Carr  v.  Duval,  14  Pet.  77,  10  L. 
Ed.  301;  Derrick  v.  Monette,  73  Ala.  75;  Jenness  v.  Iron  Co.,  53  Me.  20; 
Weaver  v.  Burr,  31  W.  Va.  736,  8  S.  E.  743,  3  L.  R.  A.  94;  Clay  v.  Ricketts. 
66  Iowa,  362,  23  N.  W.  755;  Cornwells  v.  Krengel,  41  111.  394;  Eggleston  v. 
Wagner,  46  Mich.  610,  10  N.  W.  37;  Iron  Works  v.  Douglas.  49  Ark.  355,  5 
S.  W.  585;    Northwestern  Iron  Co.  v.  Meade,  21  Wis.  474,  94  Am.  Dec.  557; 


§  24)  LAPSE    OF   OFFER.  37 

sell  land  at  a  certain  sum,  and  the  person  to  whom  the  offer  was 
made  replied  that  he  would  give  a  less  sum,  and  afterwards,  when 
this  was  refused,  and  when  the  proposer  was  no  longer  willing  to 
adhere  to  his  original  proposal,  sought  to  bind  him  by  accepting  at 
the  sum  first  asked,  it  was  held  that  the  proposal  to  buy  at  a  less 
sum  than  asked  was  a  refusal  of  the  offer,  and  a  counter  proposal, 
and  that  the  original  offer  could  not,  after  that,  be  turned  into  a 
promise  by  acceptance.®^ 

The  death  "^  or  insanity  ®^  of  either  party  before  acceptance  of  an 
offer  causes  the  offer  to  lapse.  An  acceptance  communicated  to  the  per- 
sonal representatives  of  the  proposer  after  his  death  cannot  bind 
them ;  nor  can  the  representatives  of  the  person  to  whom  an  offer 
has  been  made,  and  who  has  since  died,  bind  the  proposer  by  accept- 
ing it  on  behalf  of  the  estate.  An  offer,  as  we  have  said,  is  consid- 
ered as  continuing  up  to  the  time  of  acceptance,  but,  if  one  of  the 
parties  dies,  then  there  is  no  one  by  whom  or  to  whom,  as  the  case 
ma)"  be,  the  offer  can  be  considered  as  being  made.®*  The  fact  that 
an  acceptance  is  dispatched  iii  ignorance  of  the  proposer's  death  can 
make  no  difference.  Since,  however,  an  acceptance  by  mail  takes 
effect  at  the  moment  of  its  dispatch,  the  death  of  the  proposer  before 
thw  receipt  of  the  acceptance,  but  after  it  has  been  mailed,  does  not 
cause  the  offer  to  lapse,  since,  before  his  death,  it  has  been  turned  into 
a  binding  promise  by  the  acceptance.®'' 

So.  also,  the  dissolution  of  a  partnership  after  an  offer  has  been 
made  by  the  firm,  and  before  its  acceptance,  with  notice  thereof  to 
the  person  to  whom  the  oft'er  was  made,  revokes  the  offer;  ®^  and  it 
would  seem  that  dissolution  of  a  firm  to  whom  an  offer  is  made,  be- 
First  Nat.  Bank  v.  Clark,  61  Md.  400,  48  Am.  Rep.  114;  Crabtree  v.  Opera- 
House  Co.  (C.  C.)  39  Fed.  74G,  W.  &  H.  M.  Goulding  v.  Hammond,  4  C.  C. 
A.  533,  54  Fed.  639. 

91  HYDE  V.  WRENCH,  3  Bear.  336. 

8  2  Wallace  v.  Townsend,  43  Ohio  St.  537,  3  N.  E.  601,  54  Am.  Rep.  829; 
MACTIER'S  ADM'RS  v.  FRITH,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262: 
PRATT  V.  TRUSTEES  OF  B^U^TIST  SOC,  93  111.  475,  34  Am.  Rep.  187;  In 
re  Holfenstein's  Estate,  77  Pa.  328,  18  Am.  Rep.  449;  Frith  v.  Lawrence,  1 
Paige  (N.  Y.)  434;  Blades  v.  Free,  9  Barn.  &  C.  167;  Campanarl  v.  Woodburn, 
15  O.  B.  400;  LEE  v.  GRIFFIN,  1  Best  &  S.  272;  Aitkin  v.  Lang's  Adm'r, 
106  Ky.  6.52,  51  S.  W.  154,  90  Am.  St.  Rep.  263;  WERNER  v.  HUMPHREYS, 
2  Man.  &  G.  853;    Marr  v.  Shaw  (C.  C.)  51  Fed.  860. 

8  3  The  Palo  Alto,  2  Ware,  344,  Fed.  Cas.  No.  10,700;  BEACH  v  FIRST  M. 
E.  CHURCH,  96  111.  177.  It  seems  that  knowledge  of  the  insanity  by  the 
other  party  is  essential.  DREW  v.  NUNN,  4  Q.  B.  Div.  661;  IMPERIAL 
LOAN  CO.  V.  STONE  [1892]  1  Q.  B.  599. 

04  Frith  V.  Lawrence,  supra;    PRATT  v.  TRUSTEES,  supra. 

88  MACTIER'S  ADM'RS  v.  FRITH,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262. 

86  Goodspeed  v.  Plow  Co.,  45  Mich.  322,  7  N.  W.  902. 


17^186 


38  OFFER   AND   ACCEPTANCE.  (Ch.  2 

fore  acceptance,  must  necessarily  cause  the  offer  to  lapse,  as  the  party 
to  whom  the  offer  was  made  is  no  longer  in  existence. 


OFFERS  TO  THE  PUBLIC   GENERALLY. 

25.  An  offer  need  not  be  xaade  to  an  ascertained  person,  bnt  no  con- 
tract can  arise  until  it  has  been  accepted  by  an  ascertained 
person. 

In  order  that  an  offer  may  result  in  a  contract  it  need  not  be  made 
to  a  definitely  ascertained  person.  It  may  be  made  to  any  one  of 
the  public  generally,  or  to  any  one  of  a  class  of  persons,  who  may 
accept  it.  These  offers  are  sometimes  said  to  be  made  "to  all  the 
world,"  but  this  is  not  correct."^  Take,  for  instance,  the  case  of  a 
proposal  by  way  of  advertisement  of  a  reward  for  the  rendering  of 
certain  services,  addressed  to  the  public  at  large,  such  as  an  advertise- 
ment for  the  return  of  lost  property,  or  for  the  apprehension  of  per- 
sons who  have  committed  a  crime,  or  for  certain  information.  This 
is  an  offer,  to  any  one  who  shall  accept  it,  of  a  promise  for  an  act, 
and  becomes  a  binding  promise  to  pay  the  reward  as  soon  as  any 
individual  renders  the  services.®* 

Offers  of  this  character  are  generally  advertisements  for  such  serv- 
ices as  Ave  have  mentioned,  but  they  are  not  limited  to  them.®®    Sellers 

97  See  SPENCER  v.  HARDING.  L.  R.  5  G.  P.  561. 

9  8  Wentworth  v.  Day.  3  Mete.  (Mass.)  352,  37  Am.  Dec.  145;  Besse  v.  Dyer, 
9  Allen  (Mass.)  151,  85  Am.  Dec.  747;  LORING  v.  CITY  OF  BOSTON,  7 
Mete.  (Mass.)  409;  Wilson  v.  Guy  ton,  8  Gill  (Md.)  213;  Pierson  v.  Morch,  82 
N.  Y.  503;  First  Nat.  Bank  v.  Hart,  55  111.  62;  Montgomery  County  v.  Robin- 
son, 85  111.  174;  Harson  v.  Pike,  16  Ind.  140;  Goldsborough  v.  Cradie.  28  Md. 
477;  Ryer  v.  Stockwell,  14  Cal.  134,  73  Am.  Dec.  634;  Hayden  v.  Souger,  56 
Ind.  42,  26  Am.  Rep.  1;  Thruston  v.  Thornton,  1  Gush.  (Mass.)  91;  Morse  v. 
Bellows,  7  N.  H.  549,  563,  28  Am.  Dec.  372;  Janvrin  v.  Town  of  Exeter,  48  N. 
H.  83,  2  Am.  Rep.  185;  Gummings  v.  Gann,  52  Pa.  484;  Morrell  v.  Quarles,  35 
Ala.  544.     As  to  the  intention  to  become  bound,  see  post,  p.  41,  note  112. 

99  SEYMOUR  V.  ARMSTRONG,  62  Kan.  720,  64  Pac.  612.  A  published 
time  table  is  an  offer  by  the  railroad  company  to  the  public  generally  that, 
if  they  will  apply  for  a  ticket  for  carriage,  they  will  be  carried  as  stated 
in  the  time  table,  and  the  offer  is  accepted  by  each  person  who  applies  for  a 
ticket.  Denton  v.  Great  Northern  R.  Co.,  5  El.  &  Bl.  860;  SEARS  v.  RAIL- 
ROAD CO.,  14  Allen  (Mass.)  433,  92  Am.  Dec.  780.  The  same  docti-ine  has 
been  applied  in  the  case  of  bounties  offered  by  towns,  cities,  or  counties  to 
any  person  who  should  enlist  into  the  military  service  of  the  United  States. 
Crowell  V.  Hopkinton,  45  N.  H.  9.  As  to  offers  of  premiums  in  horse  races, 
see  Alvord  v.  Smith,  63  Ind.  58.  Offer  by  persons  pm'chasing  railroad  on 
foreclosure  and  organizing  new  company  to  exchange  new  stock  for  old. 
Schorestene  v.  Iselin,  69  Huu,  '2~>().  l;:;  .\.  Y.  Supp.  r)57.  As  to  general  letter 
of  credit  as  being  a  general  offer  resulting  In  a  promise  to  persons  giving 
credit  on  the  strength  of  it,  see  Ex  parte  Asiatic  Banking  Coi-p.,  2  Gh.  App. 
391. 


§  25)  OFFERS   TO   THE   PUBLIC  QENERALLT.  39 

of  a  medicinal  remedy,  who,  to  increase  their  sales,  advertise  that  a 
certain  sum  will  be  paid  to  any  person  who  buys  and  uses  the  remedy, 
and  afterwards  contracts  the  disease  it  is  claimed  to  prevent,  will 
become  bound  by  contract  obligation  to  any  person  who  purchases 
and  uses  the  remedy,  and  he  may  recover  the  sum  promised  if  he 
contracts  the  disease.^"" 

Such  a  general  offer  may  be  made  orally.  Thus,  where  a  person, 
whose  wife  was  in  a  burning  building,  exclaimed  to  the  bystanders  gen- 
erally that  he  would  give  a  certain  sum  to  any  person  who  would 
bring  out  her  body,  and  a  man  did  so,  it  was  held  that  he  could  re- 
cover the  sum  promised.  ^"^ 

Acceptance  and  Revocation. 

Offers  of  this  character  cannot  result  in  contract  obligation  until 
they  are  accepted  by  an  ascertained  person  by  performing  the  serv- 
ices. Before  the  services  are  rendered,  there  is  merely  an  offer, 
which  may  be  revoked. ^"^  An  acceptance  by  performance  of  the 
services  after  the  offer  has  been  withdrawn  does  not  bind  the  pro- 
poser,^**^  and  it  even  seems  that  ignorance  of  the  withdrawal  makes 
no  difference,  if  the  withdrawal  was  as  publicly  made  as  the  offer.^"* 
Accordmg  to  the  weight  of  authority,  the  offer  remains  open  for  ac- 
ceptance until  it  is  actually  withdrawn  or  revoked. "° 

Performance  of  Services  in  Ignorance  of  Offer — Motive. 

Suppose  that  the  person  performing  the  service  does  not  know  of 
the  offer,  or  does  not  realize  all  its  terms,  does  he  thereby  accept  the 
offer  and  acquire  a  right  to  the  reward  ?  In  a  leading  English  case 
a  reward  had  been  offered  by  the  defendant  for  information  which 
was  supplied  by  the  plaintiff,  but  not  with  a  view  to  the  reward.    The 

100  CARLILL  V.  CARBOLIC  SMOKE-BALL  CO.  [1892]  2  Q.  B.  484,  4  Rep. 
176;  Id.  [1893]  1  Q.  B.  256.  So,  where  a  person  invites  architects  to  submit 
designs,  stating  that  all  who  submit  plans  shall  receive  a  certain  sum,  and 
that  the  one  whose  plans  are  the  best  shall  be  engaged  as  architect,  he  be- 
comes bound  to  pay  the  sum  specified  to  all  who  submit  plans,  and,  if  he 
adjudges  one  of  the  plans  the  best,  to  make  that  architect  the  architect  of  the 
building.  Walsh  v.  Association,  16  Mo.  App.  502;  Id.,  90  Mo.  459,  2  S.  W. 
842. 

101  REIF  V.  PAIGE,  55  Wis.  496,  13  N.  W.  473,  42  Am.  Rep.  731.  And  see 
Hayden  v.  Souger,  56  Ind.  42,  26  Am,  Rep.  1. 

102  Haison  v.  Pike.  16  Ind.  140;  Freeman  v.  City  of  Boston,  5  Mete,  (Mass.) 
56;  Cummings  v.  Gaun,  52  Pa.  484. 

103  SHUEY  V,  U.  S.,  92  U.  S.  73,  23  L,  Ed.  697;  BIGGERS  v.  OWEN,  79 
Ga.  658,  5  S.  E.  193. 

10  4  SHUEY  v.  U,  S„  92  U,  S.  73,  23  L.  Ed.  697. 

105  Ryer  V,  Stockwell,  14  Cal.  134,  73  Am.  Dec.  634;  In  re  Kelly,  39  Conn. 
159.  In  Massachusetts  it  is  held  that  the  offer,  like  other  offers,  lapses  afier 
the  expiration  of  a  reasonable  time.  LORIISG  v.  CITY  OF  BOSTON^  7 
Mete,  (Mass,)  409. 


40  OFFER  AND  ACCEPTANCE.  (Cll.  2 

report  of  the  case  does  not  show  that  the  plaintiff  was  unaware  of 
the  offer;  the  only  point  which  seems  to  have  been  raised  being  that 
the  reward  was  not  the  motive  which  induced  the  plaintiff  to  supply 
the  information.  The  court  held  that  the  motive  was  immaterial, 
and  that  "there  was  a  contract  with  the  person  who  performed  the 
condition  mentioned  in  the  advertisement."  ^°^ 

In  this  country  the  authorities  are  conflicting.  Some  courts  have 
held  that  the  reward  cannot  be  recovered  where  the  person  perform- 
ing the  services  did  so  in  ignorance  of  the  offer.  "To  the  existence 
of  a  contract,"  it  was  said  in  a  New  York  case,  "there  must  be  mutual 
assent,  or,  in  another  form,  offer  and  consent  to  the  offer.  The  mo- 
tive inducing  consent  may  be  immaterial,  but  the  consent  is  vital. 
Without  that,  there  is  no  contract,  How,  then,  can  there  be  consent 
or  assent  to  that  of  which  the  party  has  never  heard?"  ^"'^  Other 
courts  have  held  that  ignorance  of  the  offer  does  not  prevent  the  per- 
son performing  the  services  from  recovering.^"^  It  has  even  been 
held,  contrary  to  the  English  case  above  mentioned,  that  the  motive 
in  performing  the  services  is  material,  and  that  there  must  be  an 
intent  to  claim  the  reward,  as  well  as  knowledge  that  it  is  offered.^"* 

OFFER  AS  REFERRING  TO  LEGAL  RELATIONS. 

26.    The  offer  must  be  intended  to  create,  and  be  capable  of  creating^ 
legal  relations. 

Intention  to  Create  Legal  Relations. 

In  order  that  an  offer  or  proposal  may  be  turned  into  a  binding 
contract  by  acceptance,  it  must  be  made  in  contemplation  of  legal 
consequences.  A  mere  statement  of  intention,  for  instance,  made  in 
the  course  of  conversation,  will  not  result  in  a  binding  promise, 
though  acted  upon  by  the   party  to  whom  it  was  made.^^°     Thus, 

106  WILLIAMS  V.  CARWARDINE,  4  Barn.  &  Adol.  621. 

107  FITCH  V.  SNEDAKER,  38  N.  Y.  248,  97  Am.  Dec.  791;  Howland  v. 
Lounds,  51  N.  Y.  G04,  10  Am.  Rep.  G54;  Marvin  v.  Treat,  37  Conn.  96,  9  Am. 
Rep.  307;  Stamper  v.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  296;  WIL.- 
LIAMS  V.  RAILWAY  CO.,  191  111.  610,  61  N.  E.  456,  85  Am.  St.  Rep.  278. 

108  DAAVKINS  V.  SAPPINGTON,  26  Ind.  199;  Russell  v.  Stewart,  44  Vt. 
170;  Auditor  v.  Ballard,  9  Bush.  (Ky.)  572,  15  Am.  Rep.  728;  Eagle  v.  Smith, 
4  Houst.  (Del.)  293;  Crawshaw  v.  City  of  Roxbury,  7  Gray  (]Mass.)  377;  Ever- 
man  v.  Hyman,  26  Ind.  App.  165,  28  N.  E.  1022,  84  Am.  St.  Rep.  284. 

100  HEWITT  V.  ANDERSON,  56  Cal.  476,  38  Am.  Rep.  65. 

110  Week  v.  Tibold,  Rolle,  Abr.  6;  Randall  v.  Morgan,  12  Ves.  67;  Stamper 
V.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  296;  Stagg  v.  Comptou,  81  Ind. 
171;  Erwin  v.  Erwin,  25  Ala.  236;  Carson  v.  Lucas,  13  B.  Mou.  (Ky.)  213; 
Henderson  Bridge  Co.  v.  McGrath,  134  U.  S.  260,  10  Sup.  Ct.  730,  33  L.  Ed. 
934;  KIRKSEY  v.  KIRKSEY,  8  Ala.  131;  Lakeside  I>and  Co.  v.  Dromgoole, 
89  Ala.  505,  7  South.  444;   Thruston  v.  Thornton,  1  Cush.  (Mass.)  89;    Higgins 


§  26)        OFFER  AS  REFEKKIXG  TO  LEGAL  RELATIONS.  41 

where  a  father  said  to  a  man  that  he  would  give  a  certain  sum  to 
him  who  married  his  daughter  with  his  consent,  and  the  man  married 
her,  and  sued  for  the  money,  it  was  held  that  he  could  not  recover, 
as  it  was  not  reasonable  that  a  man  "should  be  bound  by  general 
words  spoken  to  excite  suitors."  ^^^  Nor  will  services  rendered  for 
another  and  accepted  by  him  place  him  under  a  contractual  obligation 
to  pay  for  them,  where  payment  therefor  was  not  expected  nor  in- 
tended."^ 

On  the  same  footing  stand  engagements  of  pleasure,  or  agreements 
which,  from  their  nature,  do  not  admit  of  being  regarded  as  business 
transactions.^^* 

Same — Jest. 

Transactions  intended  as  a  joke  or  jest  cannot  result  in  a  contract, 
for  the  reason  that  there  is  no  intention  to  contract;  there  is  no  con- 
templation of  legal  consequences.^^* 

Same — Invitations  to  Deal. 

Offers  which,  by  acceptance,  may  be  turned  into  binding  promises, 
must  be  distinguished  from  offers  which  merely  amount  to  invitations 
to  deal.  Illustrations  of  this  arise  where  merchants  send  out  cir- 
culars offering  goods  for  sale  on  certain  terms,  not  intending  the  cir- 
cular as  an  offer  to  become  binding  on  acceptance,  but  merely  as  an 
invitation  to  persons  to  enter  into  negotiations;  ^^^    or  where  a  per- 

V.  Lessig,  49  111.  App.  459.  Statements  by  a  married  child  tliat  she  Intends 
to  pay  her  parents  for  support,  made  to  third  persons,  result  in  no  contract 
on  her  part.  Perkins  v.  Westcoat,  3  Colo.  App.  338,  33  Pac.  139.  The  rule 
above  stated  applies  to  offers  of  reward  made  to  the  public  generally.  Stam- 
per V.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dee.  296;  Higgins  v.  Lessig, 
49  111.  App.  459.     See,  also,  Ulrich  v.  Arnold,  120  Pa.  170,  13  Atl.  831. 

111  Week  V.  Tibold,  supra.     And  see  Randall  v.  Morgan,  supra, 

112  The  fact  that  services  are  rendered  does  not  create  a  liability  on  the 
part  of  the  person  for  whom  they  are  rendered,  even  though  done  at  his  re- 
quest, where  the  circumstances  are  such  as  to  repel  the  inference  that  com- 
pensation was  intended;  and,  when  performed  merely  from  kindly  or  charita- 
ble motives,  the  law  will  not  imply  a  promise  to  pay  for  them.  Cicotte  v. 
Church  of  St.  Anne,  60  Mich.  552,  27  N.  W.  682.  And  see  Covel  v.  Turner,  74 
Mich.  408,  41  N.  W.  1091;  Gross  v.  Cadwell.  4  Wash.  670,  30  Pac.  1052;  Sul- 
livan V.  Latimer,  38  S.  C.  158,  17  S.  E.  701;  Everitt  v.  Walker,  109  N.  C.  129, 
13  S.  B.  860;  Collyer  v.  Collyer,  113  N.  Y.  442,  21  N.  E,  114.  See,  also,  ante, 
p.  17,  and  cases  cited- 

113  Anson,  Cont.  (4th  Ed.)  19;   ante,  p.  4. 

ii4McCLURG  V.  TERRY,  21  N.  J.  Eq.  225;  Armstrong  v.  McGhee,  Add. 
(Pa.)  261;  KEI>LER  v.  HOLDERMAN,  11  Mich.  248,  83  Am.  Dec.  737;  Bruce 
V.  Bishop,  43  Vt.  161.  Marriage  ceremony  performed  in  jest,  but  by  a  person 
duly  authorized.    McCLURG  v.  TERRY,  supra. 

11 B  SPENCER  v.  HAJIDING,  L.  R.  5  C.  P.  561;  MOULTON  V.  KERSHAW, 
59  Wis.  316,  18  N.  W.  172,  48  Am.  Rep.  510;  LINCOLN  v.  PRESERVING 
CO.,  132  Mass.  129;   Kuight  v.  Cooley,  34  Iowa,  218;   ToplifE  v.  McKendree,  88 


42  OFFER  AND  ACCEPTANCE.  (Ch.  2 

son,  wishing  to  have  work  done,  or  to  buy  goods,  advertises  for 
proposals;  ^^^  or  where  a  person  advertises  that  he  will  sell  goods  at 
auction. ^^'^  The  circulars  of  the  merchant,  the  advertisement  for 
proposals,  and  the  advertisement  of  the  auction  sale,  are  mere  decla- 
rations of  intention.  Legal  consequences  are  not  directly  contem- 
plated, and  no  contract  relation  arises  with  persons  who  may  send 
an  order  for  goods,  or  make  bids,  or  attend  the  auction.  The  rule 
applies  whenever  it  is  clear  that  a  proposition  was  intended  merely 
as  an  invitation  to  deal,  and  not  as  an  offer  to  become  binding  on 
acceptance.^  ^^ 

Same — Incomplete  Negotiations. 

Similar  to  these  cases  are  those  in  which  the  parties  are  carrying 
on  negotiations,  and  have  not  yet  come  to  an  agreement.  So  long 
as  the  negotiations  are  incomplete,  there  is  no  contract.^ ^^  "An 
agreement  to  be  finally  settled  must  comprise  all  the  terms  which  the 
parties  intend  to  introduce  into  the  agreement.  An  agreement  to  en- 
ter into  an  agreement  upon  terms  to  be  afterwards  settled  between 
the  parties  is  a  contradiction  in  terms.  It  is  absurd  to  say  that  a 
man  enters  into  an  agreement  till  the  terms  of  that  agreement  are 
settled."  1=^° 

Mich.  148,  50  N.  W.  109;  Allen  v.  Kirwan,  159  Pa.  612,  28  Atl.  495;  Smith  v. 
Weaver,  90  111.  392;    Zeltner  v.  Irwin,  25  App.  Div.  228,  49  N.  Y.  Supp.  337. 

118  Howard  v.  Industrial  School,  78  Me.  230,  3  Atl.  657;  Leskie  v.  Hasel- 
stine,  155  Pa.  98,  25  AU.  886;   Topping  v.  Swords,  1  E.  D.  Smith  (N,  Y.)  609. 

117  Harris  v.  Nickerson,  L.  R.  8  Q.  B.  286. 

118  In  MOULTON  v.  KERSHAW,  59  Wis.  316,  18  N.  W.  172,  48  Am.  Rep. 
516,  the  defendants  wrote  plaintiff:  "We  are  authorized  to  offer  Michigan 
fine  salt,  in  full  carload  lots  of  80  to  95  bbls.,  delivered  at  your  city,  at  8oc. 
per  bbl.  *  *  ♦  Shall  be  pleased  to  receive  your  order,"— and  the  plaintiff 
at  once  replied,  ordering  2,000  barrels,  but  the  defendants  refused  to  fill  the 
order.  The  court  held  that  defendants'  letter  was  a  simple  notice  that  they 
were  in  a  condition  to  supply  salt  for  the  price  named,  and  an  invitation  to 
deal  with  them,  and  not  an  offer  which  plaintiff  could  change  into  a  binding 
promise  by  his  order.  See,  also,  Beaupre  v.  Telegraph  Co.,  21  Minn.  155; 
Kinghorne  v.  Telegraph  Co.,  U.  C.  18  Q.  B.  00;  Lyman  v.  Robinson,  14  Allen 
(Mass.)  254;  Smith  v.  Gowdy,  8  Allen  CMass.)  506;  SCHENECTADY  STOVE 
CO.  V.  HOLBROOK.  101  N.  Y.  45,  4  N.  E.  4;  HARVEY  v.  FACEY,  1  Rep.  428; 
Id.  [1893]  App.  Cas.  552;  Patton  v.  Arney,  95  Iowa,  664,  64  N.  W.  635.  Cf. 
Keller  v.  Ybarru,  3  Cal.  147;  College  Mill  Co.  v,  Fidler  (Tenn.  Ch.)  58  S.  W. 
382. 

119  Lyman  v.  Robinson,  14  Allen  (Mass.)  242;  SCHENECTADY  STOVE 
CO.  V.  HOLBROOK,  101  N.  Y.  45,  4  N.  E.  4;  Bean  v.  Clark  (C.  C)  30  Fed. 
225;  Templeton  v.  Wile  (City  Ct.  N.  Y.)  3  N.  Y.  Supp.  9;  Commercial  Tel. 
Co.  V.  Smith,  47  Hun  (N.  Y.)  494;  Morris  v.  Brightman,  143  Mass.  149,  9 
N.  E.  512;  Warden  v.  Williams,  62  Mich.  50,  28  N.  W.  796,  4  Am.  St.  Rep. 
814 ;  Shaw  v.  Glass  Works,  52  N.  J.  Law,  7,  18  Atl.  696 ;  Whiteford  v.  Hitch- 
cock. 74  Mich.  208.  41  N.  W.  898;  Gates  v.  Nelles,  62  Mich.  444,  29  N.  W.  73. 
And  see  ante,  p.  28. 

120  Ridgway  V.  Wharton,  G  H.  L.  Cas.  268.     And  see  SUEPARD  v.  CAR- 


§  26)       OFFER  AS  REFERRING  TO  LEGAL  RELATIONS.         43 

So,  also,  if  the  parties  come  to  an  agreement  as  to  terms,  but  with 
the  intention  that  their  agreement  is  to  be  reduced  to  writing,  and 
that  they  are  not  to  be  bound  until  this  is  done,  there  is  no  contract 
until  the  writing  is  drawn  up  and  assented  to  by  both  as  their  agree- 
ment. If  they  come  to  a  final  agreement  as  to  terms,  it  may,  indeed, 
bind  them,  though  they  intend  to  reduce  the  terms  into  writing  for 
the  purpose  of  becoming  bound  in  a  more  formal  manner,  or  of  pre- 
serving a  memorial  of  the  terms,  or  for  any  purpose  other  than  that 
of  making  the  writing  exclusively  their  agreement.^ ^^  The  question 
is  whether  they  intend  legal  consequences  before  the  formal  written 
evidence  of  their  agreement  is  executed.  If  they  do  not,  there  is  no 
contract  until  this  is  done ;  but,  if  they  do  intend  to  be  bound  with- 
out regard  to  the  writing,  there  is  a  contract. ^^^  The  question  is 
one  of  fact ;  but  the  circumstance  that  they  do  intend  a  subsequent 
writing  to  be  drawn  up  is  said  to  be  strong  evidence  that  they  do 
not  intend  to  be  bound  by  the  preliminary  agreement. ^^^ 

Offer  as  Capable  of  Creating  Legal  Relations — Definiteness  and  Cer- 
tainty. 

An  offer  or  proposal  must  be  capable  of  creating  legal  relations, 
or  no  contract  can  result.  An  agreement  cannot  create  an  obligation, 
or  legal  relations,  unless  it  is  capable  of  being  enforced  by  the  courts ; 
and,  as  we  have  seen,  creation  of  an  obligation  is  essential. 

It  follows  that,  to  result  in  a  contract,  the  agreement  must  be  suffi- 
ciently definite  and  certain  to  enable  the  court  to  collect  from  it  the 
full  intention  of  the  parties,  for  the  court  cannot  make  an  agreement 
for  them.^^*     The  parties  may  have  come  to  a  real  agreement,  but 

PENTER,  54  Minn.  153,  55  N.  W.  90G;    Sibley  v.  Felton,  156  Mass.  273,  31  N. 
E.  10;   Strobridge  Lithographing  Co.  v.  Randall,  73  Fed.  G19,  19  C.  C.  A.  611. 

121  Leake,  Cont.  98;  Ridgway  v.  Wharton,  6  H.  L.  Cas.  2G8;  Green  v.  Cole 
(Mo.  Sup.)  24  S.  W.  1058;  Lewis  v.  Brass,  L.  R.  3  Q.  B.  Div.  667;  CROSS- 
LEY  V.  MAYCOCK,  L.  R.  18  Eq.  ISO;  Sanders  v.  Fruit  Co.,  144  N.  Y.  209, 
39  N.  E.  75,  29  L.  R.  A.  431,  43  Am.  St.  Rep.  757.    And  see  ante,  p.  28. 

122  Winn  V.  Bull,  2  Ch.  Div.  29;  Fowle  v.  Freeman,  9  Ves.  351;  Gibbins  v. 
Asylum  District,  11  Beav.  1 ;  Heyworth  v.  Knight,  17  C.  B.  (N.  S.)  298 ;  Ros- 
siter  V.  Miller,  5  Ch.  Div.  648 ;  Commercial  Tel.  Co.  v.  Smith,  47  Hun  (N.  Y.) 
494 ;  Allen  v.  Chouteau,  102  Mo.  309,  14  S.  W.  869 ;  Hodges  v.  Sublett,  91  Ala. 
588,  8  South.  800;  Lawrence  v.  Railroad  Co.,  84  Wis.  427,  54  N.  W.  797; 
Mississippi  &  D.  S.  S.  Co.  v.  Swift,  86  Me.  248,  29  Atl.  1063,  41  Am.  St.  Rep. 
545;  EDGE  MOORE  BRIDGE  WORKS  v.  BRISTOL  COUNTY,  170  Mass. 
528,  49  N.  E.  918.    See,  also,  ante,  p.  28. 

123  Leake,  Cont.  98;    Ridgway  v.  Wharton,  6  H.  L.  Cas.  268. 

124  Thomson  v.  Gortner,  73  Md.  474,  21  Atl.  371;  Marble  v.  Oil  Co.,  169 
Mass.  553,  48  N.  E.  785;  In  re  Purves'  Estate,  196  Pa.  438,  46  Atl.  369;  Faulk- 
ner V.  Drug  Co.,  117  Iowa,  120,  90  N.  W.  5S5.  Uncertainty  as  to  price  or  terms 
of  payment  on  sale  of  land.  George  v.  Conhaim,  38  Minn.  338,  37  N.  W.  791; 
Smoyer  v.  Roth  (Pa.  Sup.)  13  Atl.  191;  Everett  v.  Dilley,  39  Kan.  73,  17  Pac. 
661. 


44  OFFER  AND  ACCEPTANCE.  (Cll.  2 

they  must  take  the  chances  of  not  having  made  it  intelligible.^^"  It 
is  generally  said  that  the  contract  or  the  agreement  or  the  promise 
must  be  certain,  but  it  is  the  same  thing  to  say  that  the  offer  must 
be  certain.  An  uncertain  offer  is  sometimes  apparently  remedied  by 
its  acceptance,  but  this  is  not  really  so,  for  an  acceptance  must  be 
identical  with  the  terms  of  the  offer.  If  it  varies  from  them,  as  it 
must  in  order  to  remedy  uncertainty  in  the  offer,  it  is  not  an  ac- 
ceptance, but  a  counter  offer. 

The  rule,  then,  is  that  the  offer  must  not  be  so  indefinite  as  to 
make  it  impossible  for  the  court  to  say  w^hat  was  promised.^^®  Thus, 
where  a  person  bought  a  horse,  and  promised  that,  if  it  was  lucky 
to  him,  he  would  give  a  certain  additional  sum,  "or  the  buying  of 
another  horse,"  it  was  held  that  the  promise  was  too  loose  and  vague 
to  be  considered  in  a  court  of  law.^*''  And  so,  where  a  person  agrees 
to  perform  services  for  such  remuneration  as  shall  be  deemed  right, 
or  for  such  wages  as  his  employer  shall  deem  right  or  reasonable,  or 
for  "good  wages,"  it  is  held  that  there  is  not  a  sufficiently  definite 
promise  of  payment  to  be  capable  of  enforcement.^^* 

Same — "Id  Certtim  est  Quod  Certmn  Reddi  Potest." 

This  rule,  however,  is  subject  to  the  maxim,  "Id  certum  est  quod 
certum  reddi  potest."  ^^®  For  this  reason  an  offer  to  sell  goods  need 
not  necessarily  specify  the  amount  that  may  be  ordered,  but  may  leave 

12  0  Pol.  Cont.  42. 

126  Guthing  V.  Lynn,  2  Barn.  &  Adol.  232;  SHERMAN  v  K1TSMILI.BR, 
17  Serg.  &  R.  (Pa.)  45;  Freed  v.  Mills,  120  Ind.  27,  22  N.  E.  86;  Thomson  v. 
Gortner,  73  Md.  474,  21  Atl.  371;    Erwin  v.  Erwin,  25  Ala.  236. 

127  Gutbing  V.  Lynn,  supra. 

128  TAYLOR  V.  BREWER,  1  Maule  &  S.  290;  Roberts  v  Smith,  4  Hurl.  & 
N.  315;  Fairi^lay  School  Tp.  v.  O'Neal,  127  Ind.  95,  26  N.  E.  686.  But  see 
Caldwell  v.  School  Dist.  (C.  C.)  55  Fed.  372;  Henderson  Bridge  Co.  v.  Mc- 
Grath,  134  U.  S.  260,  10  Sup.  Ct  730,  33  L.  Ed.  934.  The  following  promises 
have  been  held  void  for  uncertainty :  To  give  a  person  a  house,  and  provide 
for  her  at  promisor's  death,  if  she  would  live  with  him.  Wall's  Appeal,  111 
Pa.  460,  5  Atl.  220,  56  Am.  Rep.  288.  To  let  a  person  retain  possession  of 
property  on  his  paying  the  same  rent  the  promisor  "might  be  able  to  obtain 
from  other  parties."  Gelston  v.  Sigmund,  27  Md.  334.  That  a  person  should 
have  preference  In  renting  of  property  so  long  as  it  should  be  rented  for 
store.  Delashmutt  v.  Thomas,  45  Md.  140.  To  take  a  house  "if  put  into  thor- 
ough repair,"  and  if  the  drawing  rooms  were  "handsomely  decorated,  ac- 
cording to  the  present  style."  Taylor  v.  Portington,  7  De  Ges,  M.  G.  328. 
To  sell  land,  reserving  "the  necessary  land  for  making  a  railway."  Pearce 
V.  Watts,  20  Eq.  492.  Agi'cement  by  which  a  person  is  to  work  in  a  mine,  and 
receive  a  certain  sum  per  ton  on  all  ore  produced,  as  long  as  the  mine  can 
be  made  to  pay.  Davie  v.  Mining  Co.,  93  INIich.  491,  53  N.  W.  625,  24  L.  R. 
A.  357.  Promise  to  take  note  for  certain  sum,  without  specifying  terms. 
Van  Schaick  v.  Van  Buren,  70  Hun,  575,  24  N.  Y.  Supp.  306. 

129  Parker  v.  Pettit,  43  N.  J.  Law,  512;  Miller  v,  Kendig,  55  Iowa,  174,  7 
N.  W.  5U0;   Thompson  v.  Stevens,  71  Pa.  161. 


§  26)        OFFER  AS  REFERRING  TO  LEGAL  RELATIONS.  43 

it  for  the  person  to  whom  the  offer  is  made  to  specify  the  amount  in 
his  acceptance.  If  this  is  the  intention  of  the  parties,  the  acceptance 
conckicles  the  contract,  and  does  not  amount  to  a  counter  proposal 
necessary  to  be  accepted. ^^°  The  intention  is  important  here,  in  or- 
der to  distinguish  these  cases  from  those  in  which  it  is  held  that  the 
acceptance  does  not  conclude  a  contract  because  the  proposer  did  not 
intend  to  affect  his  legal  relations,  but  merely  to  invite  negotiations.^'^ 
For  the  same  reason  it  is  not  necessary,  in  offering  to  sell  goods,  to 
name  the  price,  for,  if  no  price  is  specified,  a  reasonable  price  will  be 
implied.  Other  illustrations  of  the  application  of  this  rule  are  given 
below.^'^ 

Same — Capacity  of  Parties — Form — Consideration — Legality   of  Ob- 
ject. 
In  order  that  an  offer  be  capable  of  creating  legal  relations,  (a)  it 
must  be  made  by  and  to  a  party  capable  of  contracting ;   (b)  it  must  be 

130  Dambmann  v.  Lorentz,  70  Md.  380,  17  Atl.  389,  14  Am.  St  Rep.  364. 

181  Ante,  p.  41. 

1S2  The  following  contracts  have  been  held  sufficiently  certain:  Contract 
making  extent  of  promisor's  liability  such  as  may  be  imposed  by  a  certain 
statute.  Town  of  Hamden  v.  Merwin,  54  Conn.  418,  8  Atl.  670.  A  promise  to 
buy  all  the  supplies  of  a  certain  kind  the  promisor  may  need.  Lenz  v.  Brown, 
41  Wis.  172;  Levey  v.  Railroad  Co.,  4  Misc.  Rep.  415,  24  N.  Y.  Supp.  124;  Min- 
nesota Lumber  Co.  v.  Coal  Co.,  100  111.  85,  43  N.  E.  775,  31  L.  R.  A.  529; 
Hickey  v.  O'Brien,  123  Mich.  611,  82  N.  W.  241,  49  L.  R.  A.  594,  81  Am.  St. 
Rep.  227.  See  post,  p.  120.  A  promise  to  sell  all  the  future  produce  of  a 
certain  vineyard  the  promisee  may  wish.  Keller  v.  Ybarru,  3  Cal.  147.  And 
see  Bates  v.  Childers,  5  N.  M.  62,  20  Pac.  164;  Booske  v.  Ice  Co.,  24  Fla.  550, 
5  South.  247;  McCall  Co.  v.  Icks,  107  Wis.  232,  83  N.  W.  300.  Definiteness  as 
to  territory  in  which  party  shall  have  exclusive  right  to  sell  goods, — "in  D. 
and  the  territory  tributary  thereto."  Kaufman  v.  Manufacturing  Co..  78 
Iowa,  679,  43  N.  W.  612,  16  Am.  St.  Rep.  462.  Cf.  Hauser  v.  Harding,  12G  N. 
C.  295,  35  S.  E.  586.  Describing  a  party  as  "Mr.  Lee"  does  not  render  the 
contract  uncertain,  as  it  may  be  explained  by  parol.  Lee  v.  Cherry,  85  Tenn. 
707,  4  S.  W.  835,  4  Am  St.  Rep.  800.  Promise  to  erect  "a  good  steam  saw- 
mill." Praley  v.  Bentley,  1  Dak.  25,  46  N.  W.  506.  Sale  of  a  stock  of  mer- 
chandise, "all  soiled  or  damaged  goods  at  vahiation."  Sergeant  v.  Dwyer, 
44  Minn.  309,  46  N.  W.  444.  Promise  to  employ  a  person  "for  12  months 
commencing  not  later  than  the  15th  of  July,  possibly  the  1st  of  July,  the  date 
to  be  fixed  by"  the  promisee.  Troy  Fertilizer  Co.  v.  Logan,  96  Ala.  019,  12 
South.  712.  Agreement  to  furnish  a  person  with  "steady  and  permanent  em- 
ployment." Pennsylvania  Co.  v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am. 
St.  Rep.  289.  See,  also,  Cornig  v.  Carr,  167  Mass.  544,  46  N.  E.  117,  35  L.  R.  A. 
512,  57  Am.  St.  Rep.  488.  Agreement  to  furnish  a  certain  number  of  car  loads 
of  lumber,  a  car  load  varying  from  35,000  to  60,000  feet.  Indianapolis  Cabinet 
Co.  v.  Herrmann,  7  Ind.  App.  462,  34  N.  E.  579.  Sale  of  nine  walnut  trees 
standing  on  the  vendor's  land,  marked  when  the  sale  is  made.  Carpenter  v. 
Medford,  99  N.  C.  495,  6  S.  E.  785,  6  Am.  St.  Rep.  535.  Contract  with  pro- 
vision that  it  should  be  renewed  for  fm-ther  term  if  plaintiff  succeeded  in  do- 
ing such  a  business  as  defendant  might  "reasonably  expect."  Worthington  v. 
Beeman,  91  Fed.  -32,  33  C.  C  A.  475. 


46  OFFER  AND  ACCEPTANCE.  (Ch.  2 

made  in  the  form  prescribed  by  law ;  (c)  If  it  is  to  be  accepted  by  the 
giving  of  a  promise,  it  must  be  a  consideration  for  the  promise ;  and, 
if  it  is  an  offer  of  a  promise,  the  act,  forbearance,  or  promise  asked  in 
return  must  be  a  consideration;  and  (d)  the  act  or  forbearance  done 
or  contemplated  must  be  lawful.  These  matters  will  be  discussed  in 
subsequent  chapters,  dealing  with  the  capacity  of  parties,  form,  con- 
sideration, and  legality  of  the  object  of  contracts. 


§  27)  CONTRACTS   UNDER  SEAL.  47 


CHAPTER  in. 

CLASSIFICATION  OF  CONTRACTS— CONTRACTS  UNDER  SEAL  AND 

CONTRACTS  OF  RECORD. 

27.  Classification  of  Contracts. 

28.  Contracts  of  Record. 

29.  Contracts  Under  Seal. 

80-32.     How  Contracts  Under  Seal  are  ^lade. 

33.  Characteristics  of  Contract  Under  Seal. 

34.  Necessity  for  Contract  Under  Seal. 

In  the  last  chapter  we  dealt  with  the  mode  in  which  the  common 
intention  of  the  parties  must  be  communicated,  and  showed  how  it 
must  refer  to  legal  relations,  in  order  that  it  may  form  the  basis  of  a  " 
contract.  It  is  not  enough,  however,  that  the  common  intention  of 
the  parties  be  communicated  in  the  mode  we  have  described,  and  that 
the  parties  intend  legal  consequences.  Most  systems  of  law  require 
some  further  evidence  of  the  intention  of  the  parties,  without  which 
mere  intention  will  not  avail  to  create  an  obligation  between  them. 
In  our  law  this  evidence  is  supplied  by  form  and  consideration.  Some- 
times one,  sometimes  the  other,  and  sometimes  both  are  required  to 
render  a  contract  enforceable.  By  "form"  is  meant  some  peculiar 
solemnity  attaching  to  the  expression  of  agreement;  by  "considera- 
tion," some  gain  to  the  party  making  the  promise,  arising  from  the 
act  or  forbearance,  given  or  promised,  of  the  promisee,  or  some  detri- 
ment suffered  by  the  promisee.^ 

CLASSIFICATION  OF  CONTRACTS. 

27.    Contracts  are  divided  intO'^ 

(a)  Contracts  dependent  for  their  validity  npon  their  form   alone, 

or  strictly  formal  contracts.      These  are: 

(1)  Contracts  of  record. 

(2)  Contracts  under  seal. 

(b)  Simple   or   parol    contracts,   which   may   be   divided   into— 

(1)  Such  as  are  dependent  for  their  validity  both  on  their  form 

and  on  the  presence  of  consideration.  These  are  contracts 
not  under  seal,  nor  of  record,  but  xirhich  are  required  by 
la\<r  to  be  in  ivriting,  either  'with  or  -without  a  particular 
form. 

(2)  Such  as  are  dependent  for  their  validity  upon  the  presence 

of  consideration  alone,  no  form  at  all  being  required. 

1  Anson,  Cont.  (8th  Ed.)  43.  The  student  will  do  well  to  read  in  this  con- 
nection what  Anson  says  in  regard  to  the  history  and  development  of  the 
doctrines  of  form  and  consideration.    See  Anson,  Cont.  (Sth  Ed.)  pp.  43-48. 


48  CONTRACTS  UNDER  SEAL.  (Gh.  3 

Sir  William  Anson  divides  contracts  into  (a)  formal  contracts,  or 
contracts  dependent  for  their  validity  upon  their  form,  under  which 
he  classes  (i)  contracts  of  record,  and  (2)  contracts  under  seal;  and 
(b)  simple  contracts,  or  contracts  which  he  declares  to  be  dependent 
for  their  validity  upon  the  presence  of  consideration,  and  under  which 
he  classes  (i)  contracts  required  by  law  to  be  in  some  form  other 
than  under  seal,  and  (2)  contracts  for  which  no  form  is  required. 
This  classification,  however,  has  been  objected  to  on  the  ground  "that 
a  contract  which  the  law  requires  to  be  in  writing,  such  as  a  promis- 
sory note  or  a  guaranty,  is  as  much  dependent  for  its  validity  upon 
the  form,  and  is  as  truly  a  formal  contract,  as  one  under  seal.  The 
latter  requires  only  a  writing  and  a  seal,  the  former  a  writing  and  a 
consideration ;  but  the  writing  in  this  instance  is  just  as  essential 
as  is  the  consideration."  * 

There  are  two  classes  of  contract  which  at  common  law  depend 
for  their  validity  upon  their  form  alone.  These  are  contracts  under 
seal  and  contracts  of  record.  They  are  strictly  formal  contracts.  All 
other  contracts  are  called  "simple"  or  "parol"  contracts,  and  depend 
for  their  validity  upon  the  presence  of  consideration.  Some  of  these 
contracts  are  also  required  to  be  in  writing,  as  in  the  case  of  bills 
of  exchange  and  promissory  notes,  in  the  case  of  which  a  particular 
form  is  also  required,  and  contracts  within  the  statute  of  frauds;  so 
that  they  depend  for  their  validity  upon  their  form  as  well  as  upon 
the  presence  of  consideration.  Simple  contracts,  not  required  by  the 
common  law  or  by  statute  to  be  in  writing,  may  be  made  by  word 
of  mouth,  or  by  conduct,  as  we  have  explained  in  treating  of  offer 
and  acceptance.  They  need  no  particular  form,  but  depend  for  their 
validity  upon  the  presence  of  consideration  alone. 

We  have,  then,  three  classes  of  contracts :  (a)  Contracts  of  record ; 
(Id)  contracts  under  seal ;  and  (c)  simple  or  parol  contracts ;  or,  if  we 
classify  according  as  a  contract  depends  for  its  validity  upon  form 
or  consideration,  or  both,  we  have:  (a)  Contracts  dependent  for  their 
validity  upon  their  form  alone,  or  (i)  contracts  of  record,  and  (2)  con- 
tracts under  seal ;  (b)  simple  or  parol  contracts,  which  are  dependent 
for  their  validity  both  on  their  form  and  on  the  presence  of  con- 
sideration, or  contracts  required  to  be  in  writing,  but  not  under  seal 
nor  of  record ;  and  (c)  simple  or  parol  contracts,  for  which  no  form 
at  all  is  required,  and  which  depend  for  their  validity  upon  the  pres- 
ence of  consideration  alone. 

All  of  these  contracts,  except  contracts  under  seal  and  contracts  of 
record,  are  called  "simple"  or  "parol"  contracts.  The  word  "parol" 
strictly  means  "by  word  of  mouth,"  and  excludes  writing;  but  the 
term  is  applied  to  all  simple  contracts,  whether  they  are  merely  oral 

2  Brantly,  Cont.  33. 


§  28)  CONTRACTS   OF   RECORD.  49 

or  required  to  be  in  writing.     They  all  require  consideration,  the  only 
distinction  being  in  the  fact  that  some  must  be  in  writing.^ 

We  shall  now  deal  with  the  contracts  of  record  and  contracts  un- 
der seal,  and  in  following  chapters  with  those  forms  which  are  super- 
imposed upon  simple  contracts,  and  with  consideration,  the  requisite 
common  to  all  simple  contracts. 

CONTRACTS  OF  RECORD. 

28.    The   obligations   Ttrhich   are   styled  "contracts   of  record"   are: 

(a)  Judgments    of   courts    of  record,  xi^liether   entered   by   consent   or 

rendered  in  invitum.    In  the   latter  case,   hoxirever,  the   obliga* 
tion  is  quasi  contractual,  and  not  contractual. 

(b)  Recognizances,  which  are  obligations,  entered  into  before  a  court 

of  record,  to  do  or  forbear  from  doing  a  certain  thing  under  9 
penalty. 

Judgments. 

A  judgment  of  a  court  of  record  awarding  a  sum  of  money  to  one 
of  two  litigants,  either  by  way  of  damages  or  for  costs,  lays  an  obliga- 
tion upon  the  other  to  pay  the  sum  awarded.  The  judgment  is  en- 
tered upon  the  record  of  the  court,  and  for  this  reason  is  called  a 
"formal"  contract.  This  obligation  may  come  into  existence  as  the 
final  result  of  litigation  when  the  court  pronounces  judgment,  or  it 
may  be  created  by  agreement  between  the  parties  before  litigation  has 
commenced,  or  during  its  continuance.  In  the  latter  case  there  is 
agreement,  and  the  agreement  results  in  obligation.  The  judgment, 
therefore,  has  the  features  of  contract.  In  the  former,  however,  there 
is  no  consent  on  the  part  of  the  person  bound,  and  the  obligation, 
therefore,  is  not  contractual,  but  quasi  contractual.*  Where  the  judg- 
ment is  entered  by  agreement,  the  obligation  results  from  a  contract 
for  the  making  of  which  certain  formalities  are  required, — either  a 
warrant  of  attorney,  by  which  one  party  gives  authority  to  the  other 
to  enter  judgment  upon  terms  settled,  or  a  cognovit  actionem,  by 
which  the  one  party  acknowledges  the  right  of  the  other  in  respect 
of  the  pending  dispute,  and  then  gives  a  similar  authority.* 

Characteristics  of  Judgment — Estoppel. 

The  characteristics  of  an  obligation  of  this  nature  are  these : 
(i)  Its  terms,  so  long  as  it  has  not  been  regularly  vacated  or  re- 
versed, admit  of  no  dispute,  but  are  conclusively  proved  by  a  pro- 
duction of  the  record.     The  judgment,  however,  to  be  so  conclusive, 

3  RANN  V.  HUGHES,  7  Term  R.  350;  Wbitehill  v.  Wilson,  3  Pen.  &  W, 
(Pa.)  405,  24  Am.  Dec.  326;  Perrine  v.  Cbeoseman,  11  N.  J.  Law,  174;  Stabler 
V.  Cowman,  7  Gill  &  J.  (Md.)  284.    See  post.  p.  110, 

*  Ante,  p.  8  ;  post,  p.  5^50.  ^  See  Leake,  Gout.  89-95. 

Clark  Cont.  (2d  Ed.) — 4 


50  CONTRACTS   UNDER   SEAL.  (Cb.  3 

must  be  valid.  It  must  have  been  rendered  by  a  court  having  juris- 
diction of  the  subject-matter  and  of  the  parties,  and  must  have  been 
properly  entered  of  record.' 

Same — Merger — Res  Judicata. 

(2)  As  soon  as  it  is  created,  the  previously  existing  rights  with 
which  it  deals  merge  or  are  extinguished  in  it.  For  instance,  where 
a  person  sues  another  for  breach  of  contract,  or  for  a  civil  injury, 
and  a  judginent  is  entered,  either  by  consent  or  after  trial,  neither 
party  has  any  further  rights  in  respect  of  the  cause  of  action.  The 
judgment  conclusively  settles  their  rights,  and  the  matter  is  said  to 
be  res  judicata.^  Difficulties  arise  in  applying  the  doctrine,  but  it 
would  be  beyond  the  scope  of  a  book  on  contracts  to  go  into  the 
subject. 

Same — Remedies  of  Creditor. 

(3)  The  judgment  creditor,  or  person  in  whose  favor  the  judgment 
is  entered,  has  certain  advantages  which  an  ordinary  creditor  does 
not  possess.  He  has  a  double  remedy  for  his  debt.  He  can  take 
out  execution  on  the  judgment,  and  so  obtain  directly  the  sum  award- 
ed, and  he  can  also  bring  an  action  on  the  judgment  for  nonfulfill- 
ment of  the  obligation.* 

Recognisance. 

A  recognizance  is  an  obligation  of  record  entered  into  generally, 
but  not  necessarily,  in  a  criminal  case,  before  some  court  of  record 
or  magistrate  duly  authorized,  with  condition  to  do  some  particular 
act;  as,  for  instance,  to  appear  at  court  as  a  witness,  or  for  trial,  to 
keep  the  peace,  or  to  pay  a  debt.* 

«  Vooght  V.  Winch,  2  Barn.  &  Aid.  662;  Thp  Rio  Grande  v.  Otis,  23  Wall. 
458,  23  L.  Ed.  158;  Osage  City  Bank  v.  Jones,  51  Kan.  379,  32  Pac.  1096;  Le 
Grange's  Lessee  v.  Ward,  11  Ohio,  258;  Penny  wit  v.  Foote,  27  Ohio  St.  600, 
22  Am.  Rep.  340;  Burwell  v.  Burgwyn,  105  N.  C.  498,  10  S.  E.  1099;  Suber 
V.  Chandler,  36  S.  C.  344,  15  S.  E.  426;  Junkans  v.  Bergin,  64  Cal.  203,  30 
Pac.  627;  Strong  v,  Lawrence,  58  Iowa,  55,  12  N.  W.  74;  Hollister  v.  Ab- 
bott, 31  N.  H.  442,  61  Am.  Dec.  342;  post,  p.  493. 

■7  Smith  V.  Nichols,  5  Bing.  N.  C,  at  page  220;  Harrington  v.  Harrington, 
154  Mass.  517,  28  N.  E.  903;  Todd  v.  Stewart,  9  Q.  B.  759;  Oregonian  Ry.  Co. 
V.  Navigation  Co.  (C.  C.)  27  Fed.  277;  Burlen  v.  Shannon,  99  Mass.  200,  96 
Am.  Dec.  733;   Hill  v.  Morse,  61  Me.  541;   post,  p.  478. 

«  Jones  V.  Williams,  13  Mees.  &  W.  628. 

•  Black,  Law  Diet.  tit.  "Recognizance;"    2  Bl.  Comm.  341. 


§§  29-32)  HOW   CONTRACTS   UNDER   SEAL   ARE    MADE.  51 


CONTRACTS    UNDER    SEAL. 

29.  Contracts  under  seal,  otherwise  called  "deeds"  or  "specialties,"  de- 
rive their  validity,  at  common  la^v,  from  their  form  alone,  and 
not  from  the  fact  of  agreement  or  consideration. 

It  is  often  said  that  the  seal  imports  a  consideration,  but,  as  we 
shall  see,  this  is  incorrect.  At  common  law  the  question  of  consider- 
ation is  altogether  immaterial.  The  form  alone  gives  the  contract 
its  validity.^** 

All  contracts  under  seal  are  called  "deeds"  or  "specialties."  We 
generally  use  the  term  "deed"  as  applying  to  conveyances  of  land, 
but  it  applies  as  well  to  all  contracts  under  seal.  Particular  contracts 
under  seal,  deeds,  or  specialties  are :  (i)  Grants  or  conveyances  of 
land,  in  which  the  parties  are  called  respectively  "grantor"  and  "gran- 
tee;" (2)  bonds,  which  are  obligations  conditioned  upon  the  payment 
of  money,  or  the  doing  or  forbearance  from  doing  some  act,  the  par- 
ties to  a  bond  being  called  respectively  "obligor"  and  "obligee;"  and 
(3)  covenants,  which  are  agreements  between  two  or  more  persons, 
entered  into  by  deed, — that  is,  under  seal, — whereby  one  or  more  of 
them  promises  the  other  or  others  the  performance  or  nonperform- 
ance of  certain  acts,  or  that  a  given  state  of  things  does  or  shall  or 
does  not  or  shall  not  exist,  the  parties  being  called  respectively  "cove- 
nantor" and  "covenantee." 


HOW  CONTRACTS  UNDER  SEAL  ARE  MADE. 

30.  A  deed  mnst  be  in  ivriting,  and  must  be  sealed  and  delivered,  and' 

possibly  signed. 

31.  It  takes  effect  from  the  date  of  its  delivery. 

32.  ESCROW — A   deed  may  be   delivered  to   a  third  person  to  be  de- 

livered tc  the  other  party  to  it  on  the  performance  of  a  con- 
dition, and  in  such  case  takes  effect,  on  performance  of  the 
condition,  from  the  date  of  the  original  delivery. 

A  deed  must  be  in  writing  or  printed  on  paper  or  parchment.** 
It  is  often  said  to  be  executed,  or  made  conclusive  as  between  the 
parties,  by  being  "signed,  sealed,  and  delivered."     At  common  law 

10  Leake,  Cont.  76. 

11  "A  deed  is  a  writing  or  instrument,  written  on  paper  or  parchment,  sealed 
and  delivered,  to  prove  and  testify  tbe  agreement  of  the  parties  whose  deed 
it  is  to  the  things  contained  in  the  deed.  *  *  ♦  A  deed  cannot  be  written 
upon  wood,  leather,  cloth,  or  the  like,  but  only  upon  parchment  or  paper,  for 
the  writing  upon  them  can  be  least  vitiated,  altered,  or  corrupted."  Shep. 
Touch.  50;   Co.  Litt.  35b.    For  the  reason  why  a  deed  may  not  be  written  on 


52  CONTRACTS   UNDER  SEAL.  (Cb.  3 

there  seems  to  be  some  doubt  whether  signature  to  a  deed  is  neces- 
sary/^ but  it  is,  to  say  the  least,  safer  to  sign.  That,  however,  which 
identifies  a  party  to  a  deed  with  its  execution  is  the  presence  of  his 
seal;  that  which  makes  it  operative,  so  far  as  he  is  concerned,  is 
the  fact  of  its  delivery  by  him.^* 

The  Seal. 

There  cannot  be  a  deed  or  specialty  without  a  seal.** 
A  seal  is  said  by  Lord  Coke  to  be  wax,  with  an  impression,*'  and 
no  doubt  anciently  wax  was  the  only  substance  used;  but  it  is  no 
longer  essential.  The  impression  may  be  made  on  a  wafer  attached 
to  the  instrument,  or  any  other  substance  sufficiently  tenacious  to  ad- 
here, and  capable  of  receiving  an  impression.^®  It  is  therefore  held 
sufficient  if  the  impression  is  made  on  the  paper  itself  on  which  the 
instrument  is  written.  It  need  not  be  on  a  separate  substance  at- 
tached to  the  instrument.*'' 

Some  of  the  states  have  passed  statutes  allowing  a  scroll  or  scrawl 
made  with  the  pen  to  be  used  in  the  place  of  a  seal,**  and  some 
courts  have  held,  independent  of  statute,  that  a  scroll  is  sufficient.*^ 

wood,  see  Pol.  Cont.  156.     It  may  well  be  doubted  whether  the  old  rule  re- 
quiring paper  or  parchment  exclusively  would  be  strictly  followed  to-day. 

12  Leake,  Cont.  76;  Cooch  v.  Goodman,  2  Q.  B.  597;  CROMWELL  v. 
GRUNSDEN,  2  Salk.  462;   Jetfery  v.  Underwood,  1  Pike  (Ark.)  108. 

13  Anson,  Cont.  (4tli  Ed.)  46. 

14  State  V.  Thompson,  49  Mo.  188;  Vance  v.  Funk,  2  Scam.  (111.)  263;  Chil- 
ton v.  People,  66  111.  501;  Stabler  v.  Cowman,  7  Gill  &  J,  (Md.)  284;  Booth- 
bay  V.  Giles,  68  Me.  160;  Corbin  v.  Laswell,  48  Mo.  App.  626.  Where,  how- 
ever, a  seal  is  omitted  by  mistake,  a  court  of  equity  will  reform  the  instru- 
ment by  supplying  one,  or  will  restrain  the  setting  up  of  the  want  of  one  to 
defeat  a  recovery  at  law.  Inhabitants  of  Bernards  Tp.  v.  Stebbins.  109  U.  S. 
341,  3  Sup.  Ct.  252,  27  L.  Ed.  956;  Wadsworth  v.  Wendell,  5  Johns.  Ch.  (N.  Y.) 
224;  Town  of  Rutland  v.  Page,  24  Yt.  181;  Inhabitants  of  Town  of  Montville 
v.  Haughton,  7  Conn.  543;  Sullivan  v.  Latimer,  38  S.  C.  417,  17  S.  E.  221.  The 
matter  appearing  on  an  instrument  must  have  been  intended  as  a  seal.  The 
fact  that  it  appears  to  be  a  seal,  if  it  was  not  so  intended,  does  not  make 
the  instrument  a  specialty.  Clement  v.  Gunhouse,  5  Esp.  83;  Blackwell  v. 
Hamilton,  47  Ala.  470.  As  to  presumption  that  there  was  a  seal  on  an  an- 
cient deed  on  which  no  seal  appears,  see  Reusens  v.  Staples  (C.  C.)  52  Fed.  91. 

15  3  Coke,  Inst.  169. 

16  4  Kent,  Comm.  452;  WARREN  v.  LYNCH,  5  Johns.  (N.  Y.)  239;  Tasker 
V.  Bartlett,  5  Cush.  (Mass.)  359;   Beardsley  v.  Knight,  4  Vt.  471. 

17  PILLOW  V.  ROBERTS,  13  How.  472,  14  L.  Ed.  228;  Pierce  v.  Indseth, 
106  U.  S.  546,  1  Sup.  Ct.  418,  27  L.  Ed.  254;  Hendee  v.  Pinkerton,  14  Allen 
(Mass.)  381. 

18  Such  is  the  case  in  California,  Connecticut,  Florida,  Indiana,  Illinois, 
Michigan,  ^Minnesota,  Missouri,  New  Jersey,  New  Mexico,  Oregon,  Virginia, 
West  Virginia,  and  Wisconsin,  and  probably  in  other  states. 

19  Hacker's  Appeal,  121  Pa.  192,  15  Atl.  500,  1  L.  R.  A.  861;  Lee  v.  Adkins, 
1  Minor  (Ala.)  187;  Bertrand  v.  Byrd,  4  Ark.  195;  Hastings  v.  Vaughn,  5 
Cal.  315;   Trasher  v.  Everhart,  3  Gill  &  J.  (Md.)  234;    Underwood  v.  Dollins, 


§§  30-32)  HOW   CONTRACTS   UNDER   SEAL   ARE    MADE.  53 

At  common  law,  however,  this  is  not  permissible;  there  must  be  an 
impression.-'^ 

At  common  law  the  mere  affixing  of  the  seal  makes  the  instrument 
a  contract  under  seal,  but  it  has  been  held  that,  where  a  scroll  is 
used,  there  must  be  some  recital  in  the  body  of  the  instrument  recog- 
nizing it  as  a  seal.^^     The  authorities  on  this  point  are  not  in  accord. ^^ 

One  seal  may  do  for  any  number  of  parties  signing  a  deed  if  each 
one  adopts  it  as  his  own,  but  it  is  always  safer  to  have  a  seal  for 
each  signature.^' 

Delivery. 

To  render  an  instrument  under  seal  a  valid  and  binding  contract, 
it  must  be  delivered.-*  Delivery  may  be  effected  either  by  actually 
handing  the  instrument  to  the  other  party  himself,^ ^  or  to  a  stranger 

47  Mo.  259;  Groner  v.  Smith,  49  Mo.  318.  Whether  a  mark  or  character  shall 
be  held  to  be  a  seal  depends  on  the  intention  of  the  executant  as  shown  by  the 
paper.  JACKSONVILLE,  M.  P.  RY.  &  NAV.  CO.  v.  HOOPER,  160  U.  S.  514, 
16  Sup.  Ct.  379,  40  L.  Ed.  515. 

20  WARREN  V.  LYNCH,  supra;  Hendee  v.  Pinkerton,  supra;  Bates  v.  Bos- 
ton &  N.  Y.  C.  R.  Co.,  10  Allen  (Mass.)  251;  Perrine  v.  Cheeseman,  11  N.  J. 
Law.  174,  19  Am.  Dec.  388. 

21  Cromwell  v.  Tate's  Ex'r,  7  Leigh  (Va.)  301;  Lee  v.  Adkins,  1  Minor  (Ala.) 
187;  Glasscock  v.  Glasscock,  8  Mo.  577;  Lewis'  Ex'rs  v.  Overby's  Adm'rs,  28 
Grat.  (Va.)  627;  Breitling  v.  Marx,  123  Ala.  222,  26  South.  203;  Echols  v. 
Phillips,  112  Ga,  700,  37  S.  E.  977. 

22  "The  authorities,"  says  Prof.  Knowlton  in  his  edition  of  Anson  on  Con- 
tracts, "are  not  in  accord  lapon  this  question;  and,  while  much  may  depend 
on  the  wording  of  the  statute  allowing  the  scroll,  still  it  is  believed  that,  if  the 
device  adopted  is  intended  to  be  a  seal,  it  is  to  be  regarded  as  such,  though 
the  intention  be  not  expressly  declared.  The  presumption  is  that  the  parties 
undertook  to  execute  such  an  instrument  as  would  be  effectual  for  the  pm*pose 
intended."  Knowlton's  Anson,  Cont.  55.  See  Burton  v.  Leroy,  5  Sawy.  510, 
Fed.  Cas.  No.  2,217;  Trasher  v.  Everhart,  3  Gill  &  J.  (Md.)  234;  EAMES  v. 
PRESTON,  20  111.  389;  Brown  v.  Jordhal,  32  Minn.  135,  19  N.  W.  G50,  50  Am. 
Rep.  516;  Wing  v.  Chase,  35  Me.  260;  Richardson  v.  Mining  Co.,  22  Cal.,  at 
page  157;  Frevall  v.  Fitch,  5  Whart.  (Pa.)  325,  34  Am.  Dec.  558;  21  Am.  & 
Eng.  Enc.  Law.  894,  note. 

2  3  Ball  V.  Dunsterville,  4  Term  R.  313;  Ludlow  v.  Simond,  2  Caines,  Cas.  1, 
2  Am,  Dec.  291;  Pickens  v.  Rymer,  90  N.  C.  282,  47  Am.  Rep.  521;  Davis  v. 
Burton,  3  Scam.  (111.)  41,  36  Am.  Dec.  511;  Yale  v.  Flanders,  4  Wis.  96;  Biu-- 
nett  v.  McCluey,  78  Mo.,  at  page  688;  Hollis  v.  Pond,  7  Humph.  (Tenn.)  221; 
In  re  Hess'  Estate,  150  Pa.  346,  24  Atl.  676;  Norvell  v.  Walker,  9  W.  Va.  447; 
Citizens'  Building  Ass'n  v.  Cummings,  45  Ohio  St.  661,  16  N.  R  841. 

24  Shep.  Touch.  57;  Cook  v.  Brown,  34  N.  H.  476;  Johnson  v.  Farley,  45 
N.  H.  505;  Overman  v.  Kerr,  17  Iowa,  490;  Fisher  v.  Hall,  41  N.  Y.  421;  Duer 
V.  James,  42  Md.  492;  Younge  v.  Guilbeau,  3  Wall.  641,  18  L,  Ed.  262;  Harris 
V.  Regester,  70  Md.  109,  16  Atl.  386.  Obtaining  deed  by  fraud,  no  deliv- 
ery. Tisher  v.  Beckwith.  .30  AVis.  55,  11  Am.  Rep.  546;  Gould  v.  Wise,  97  Cal. 
532,  32  Pac.  576,  33  Pac.  323. 

2  5  Richmond  v.  Morford,  4  Wash.  337,  30  Pac.  241,  31  Pac.  513;  Bogie  v. 
Bogie,  35  Wis.  659. 


54  CONTRACTS  UNDER   SEAL.  (Ch.  3 

for  his  benefit,^'  or  by  words  or  conduct  indicating  an  intention  that 
the  instrument  shall  become  binding  though  it  is  retained  in  the  pos- 
session of  the  p^rty  executing  it.^''  In  all  cases  there  must  be  an 
intention  to  deliver  the  instrument.  Merely  to  part  with  the  posses- 
sion of  it,  without  intending  thereby  to  render  it  operative,  is  not  a 
delivery. ^^ 

26  Peavey  v.  Tilton,  18  N.  H.  151,  45  Am.  Dec.  365;  Mitchell's  Lessee  v. 
Ryan,  3  Ohio  St  377 ;  Otis  v.  Spencer,  102  111.  622,  40  Am.  Rep.  617 ;  Douglas 
V.  West,  140  111.  455,  31  N.  E.  403;  Hall  v.  Hall.  107  Mo.  101,  17  S.  W.  811; 
Williams  v.  Latham,  133  Mo.  165,  20  S.  W.  99;  Brown  v.  Brown,  66  Me.  316; 
Duer  V.  James,  42  Md.  492;  Haenni  v.  Bleisch,  146  111.  262,  34  N.  E.  153;  Col- 
yer  v.  Hyden,  94  Ky.  ISO,  21  S.  W.  868;  White  v.  Pollock,  117  Mo.  467,  22  S. 
W.  1077,  38  Am.  St.  Rep.  639. 

27  XENOS  V.  WICKHAM,  L.  R.  2  H.  L.  296;  ROBERTS  v.  SECURITY  CO. 
[5897]  1  Q.  B.  Ill;  Ruckman  V.  Ruckman,  32  N.  J.  Eq.  259;  Benneson  v.  Aiken, 
102  111.  284,  40  Am.  Rep.  592;  Rodemeier  v.  Brown,  169  111.  347,  48  N.  E.  468, 
61  Am.  St.  Rep.  176;  McCullough  v.  Day,  45  Mich.  554,  8  N.  W.  535;  Dunham  v. 
Pitkin,  53  Mich.  504,  19  N.  W.  166;  Wall  v.  Wall,  30  Miss.  91,  64  Am.  Dec.  147. 
Recording  of  deed  by  grantor  may  be  presumptive  evidence  of  delivery.  Glaze 
V.  Three  Rivers,  etc.,  Ins.  Co.,  87  Mich.  349,  49  N.  W.  595;  Steele  v,  Lowry,  4 
Ohio,  72,  19  Am.  Dec.  581;  Kemp  v.  Walker,  16  Ohio,  118;  Tobin  v.  Bass,  85 
Mo.  654,  55  Am.  Rep.  393;  Burke  v.  Adams,  80  Mo.  504,  50  Am.  Rep.  510; 
Swiney  v.  Swiney,  14  Lea  (Tenn.)  316;  Vaughan  v.  Godman,  103  Ind.  499,  3 
'N.  E.  257;  Walton  v.  Burton,  107  111.  54;  Moore  v.  Giles,  49  Conn.  570;  Palmer 
V.  Palmer,  62  Iowa,  204,  17  N.  W.  463;  Whitney  v.  Hale,  67  N.  H.  385,  30  Atl. 
417;  Holmes  v.  McDonald,  119  Mich.  563,  78  N.  W.  647,  75  Am.  St.  Rep.  430. 
The  presumption  may  be  rebutted,  however,  by  showing  that  there  was  in  fact 
no  delivery  and  acceptance.  Hendricks  v.  Rasson,  53  Mich.  575,  19  N.  W.  192; 
Jefferson  Co.  Bldg.  Ass'n  v.  Heil^  81  Ky.  516;  Weber  v.  Christen,  121  111.  91, 
11  N.  E.  893,  2  Am.  St.  Rep.  68;  Brown  v.  Brown,  167  111.  631,  47  N.  E.  1046; 
Fair  Haven  Marble  &  Marbleized  Slate  Co.  v.  Owens,  69  Vt.  246,  37  Atl.  246. 
It  is  very  generally  held  that  the  mere  fact  of  recording  raises  no  presump- 
tion of  delivery.  GIFFORD  v.  CORRIGAN,  105  N.  Y.  223,  11  N.  E.  498;  Hill 
V.  McNichol,  80  Me.  209,  13  Atl.  883;  Barnes  v.  Barnes,  161  Mass.  381,  37  N. 
E.  749;  Babbitt  v.  Bennett,  68  Minn.  260,  71  N.  W.  22. 

2  8  Jordan  v.  Davis,  108  111.  336;  Adams  v.  Ryan,  61  Iowa,  733,  17  N.  W.  159; 
Ireland  v.  Geraghty  (C.  C.)  15  Fed.  45.  "A  delivery  may  be  by  acts  without 
words,  or  by  words  without  acts,  or  by  both.  Anything  which  clearly  mani- 
fests the  intention  of  the  grantor,  and  the  person  to  whom  it  is  delivered, 
that  the  deed  shall  presently  become  operative  and  effectual;  that  the  gran- 
tor loses  all  control  over  it;  and  that  by  it  the  grantee  is  to  become  possessed 
of  the  estate,— constitutes  a  sutficient  delivery.  The  very  essence  of  the  de- 
livery is  the  intention  of  the  party."  Marshall  D.  Ewell,  in  note  to  Ireland  v. 
Geraghty,  supra.  And  see  Bryan  v.  Wash,  2  Gilman  (111.)  565;  Walker  v. 
Walker,  42  111.  311;  Duer  v.  James,  42  Md.  492;  Ruckman  v.  Ruckman,  32  N. 
J.  Eq.  259;  Tliatcher  v.  St.  Andrew's  Church,  37  Mich.  264;  Gregory  v.  Walk- 
er, 38  Ala.  26;  Burkholder  v.  Casad,  47  Ind.  418;  Rogers  v.  Carey,  47  :Mo.  235, 
4  Am.  Rep.  322;  AVilliams  v.  Schatz,  42  Ohio  St.  47;  Goodlet  v.  Kelly,  74 
Ala.  213;  Davis  v.  vv'illlams,  57  Miss.  843;  Burnett  v.  Burnett,  40  Mich.  361. 
Where  a  deed  is  placed  in  the  hands  of  a  depositary  to  be  delivered  to  the 
grantee  upon  the  death  of  the  grantor,  or  at  any  other  time,  but  the  gi-antor 
reserves  the  right  and  power  to  recall  it  at  any  time,  there  is  no  deUvery. 


§§  30-32)  UOW    CONTRACTS   UNDER   SEAL   ARE    MADE.  55 

To  constitute  a  good  delivery,  it  is  generally  held  in  this  country 
that  there  must  also  be  an  acceptance  by  the  other  party,^''  but  the 
acceptance  need  not  always  be  expressly  shown.  Where  the  instru- 
ment is  clearly  beneficial  to  the  other  party,  its  acceptance  will  be  pre- 
sumed,^" though,  of  course,  this  cannot  be  so,  even  when  it  is  bene- 
ficial, if  acceptance  is  in  fact  refused,  for  a  man  cannot  be  compelled 
to  accept  evQii  a  benefit.^ ^ 

Possession  by  the  grantee  or  obligee  is  prima  facie  evidence  of  de- 
livery and  acceptance.^ - 

As  the  delivery  of  a  contract  under  seal  is  what  makes  it  operative, 
its  date  is  the  date  of  delivery.  The  date  appearing  on  the  instru- 
ment is  entirely  immaterial.  It  may  have  no  date  at  all,  or  an  im- 
possible date.^^  In  the  absence  of  anything  to  show  the  contrary,  a 
deed  will  be  presumed  to  have  been  delivered  on  the  day  of  its  date, 
but  delivery  at  a  different  time  may  always  be  shown  by  extrinsic 
evidence.^* 

Same — Escrow. 

A  deed  may  be  delivered  to  a  stranger,  to  be  by  him  delivered  to 
the  other  party  to  it  on  the  fulfillment  of  certain  conditions,  in  which 
case  it  does  not  take  effect  until  the  condition  is  fulfilled.^'  This  is 
a  delivery  in  escrow,  and  during  this  period  the  deed  is  termed  an 
"escrow."     Immediately  upon  fulfillment  of  the  conditions,  the  deed 

Cook  V.  Brown,  supra;  Stinson  v.  Anderson,  96  111.  373;  Prutsman  v.  Baker, 
30  Wis.  644,  11  Am.  Rep.  592;  Baker  v.  Haskell,  47  N.  H.  479,  93  Am.  Dec. 
455;   Brown  v.  Brown,  oo  Me.  316;    Duer  v.  James,  42  Md.  492. 

29  Moore  v.  Flynn,  135  111.  74,  25  N.  E.  844;  Mitchell's  Lessee  v.  Ryan,  3 
Ohio  St.  377;  Cobett  v.  Norcross,  35  N.  H.  99;  Leppoc  v.  Bank,  32  Md.  136; 
Comer  v.  Baldwin,  16  Minn.  172  (Gil.  151);  MEIGS  v.  DEXTER,  172  Mass. 
217,  52  N.  E.  75.  Third  parties  may  acquire  rights  by  attachment  or  other- 
wise at  any  time  before  acceptance.  Bell  v.  Bank,  11  Bush  (Ky.)  34,  21  Am. 
Rep,  205;  Parmelee  v.  Simpson,  5  Wall.  81,  18  L.  Ed.  542;  Day  v.  Griffith,  15 
Iowa,  104. 

30Peavey  v.  Tilton,  18  N.  H.  151;  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St. 
377;  Halluck  v.  Bush,  2  Root  (Conn.)  26,  1  Am.  Dec.  60;  Wall  v.  Wall,  30 
Miss.  91,  64  Am,  Dec,  147;  Whitney  v.  Hale,  67  N.  H.  385,  30  Atl,  417, 

31  See  Leake,  Cont,  81;  BUTLER  AND  BAKER'S  CASE,  3  Coke,  26b;  St, 
Louis,  I,  M,  &  S,  Ry,  Co,  v,  Ruddell,  53  Ark.  32,  13  S.  W.  418;  Atrv'ood  v.  Mar- 
shall, 52  Neb.  173,  71  N.  W.  1064.    And  see  cases  cited  supra,  note  27. 

32  Keedy  v.  Moats,  72  Md,  325,  19  Atl,  965;  Dawson  v.  Hall,  2  Mich,  390; 
Wood  V,  Chetwood,  44  N,  J,  Eq,  64,  14  Atl,  21. 

3  3  McMichael  v.  Carlyle,  53  Wis.  504,  10  N.  W,  556, 

34  Faulkner  v.  Adams,  126  lud.  459,  26  N.  E.  170;  Saunders  v.  Blythe,  112 
Mo.  1,  20  S.  W.  319;  Smith  v.  Porter,  10  Gray  (Mass.)  66;  Battles  v,  Fobes, 
21  Pick,  (Mass.)  239, 

80  Harkreader  v,  Clayton,  56  Miss.  383,  31  Am.  Rep.  369;  Wheelwright  v. 
Wheelwright,  2  Mass.  447,  3  Am,  Dee.  66;  Prutsman  v.  Baker,  30  Wis.  644, 
11  Am.  Rep.  592. 


56  CONTRACTS  UNDER   SEAL.  (Ch.  3 

becomes  operative,  without  actual  delivery  by  the  depositary."  To 
constitute  an  escrow,  the  delivery  to  the  depositary  must  be  condi- 
tional. If  it  is  merely  postponed,  the  delivery  to  him  is  an  effective 
delivery  to  the  grantee  or  obligee,  and  not  a  delivery  in  escrow.^'' 
A  deed  thus  conditionally  delivered  must  be  delivered  to  a  stranger. 
If  it  is  delivered  to  the  other  party,  or  to  his  agent,  it  will  take  effect 
at  once,  in  spite  of  the  conditions,  on  the  ground  that  a  delivery  in 
fact  outweighs  verbal  conditions.^* 

There  is  no  delivery,  even  as  an  escrow,  where  the  grantor  or 
obligor  retains  control  of  the  deed  with  power  to  withdraw  it.^* 

Upon  delivery  of  an  escrow,  and  performance  or  happening  of  the 
condition,  the  deed  becomes  effective  from  the  date  of  the  original 
delivci'-y ;  so  that,  if  a  bond  is  delivered  as  an  escrow,  and  before 
fulfillment  of  the  condition  the  obligor  and  obligee  die,  yet,  on  fulfill- 
ment of  the  condition,  it  becomes  an  effective  bond,  and  charges  the 
assets  of  the  deceased  obligor.*" 

Execution  in  Blank. 

A  deed  executed  in  blank — that  is,  completely  sealed  and  delivered, 
with  an  omission  of  a  material  particular — is  void,  and  cannot  be 
made  good  by  subsequently  filling  in  the  blank  without  a  re-execution, 
or  what  is  equivalent  thereto.*^ 

3  8  Prutsman  v.  Baker,  supra;  Couch  v.  Meeker,  2  Conn,  302,  7  Am.  Dec. 
274;  White  Star  Line  Steamboat  Co.  v.  Moragne,  91  Ala.  610,  8  South.  867. 

3  T  Martin  v.  Flaharty,  13  Mont.  96,  32  Pac.  287,  19  L.  R.  A.  242,  40  Am. 
St  Rep.  415. 

38  Co.  Litt.  36a;  Dawson  v.  Hall,  2  Mich.  390;  Fairbanks  v.  Metcalf,  8 
Mass.  230;  Foley  v.  Cowgill,  5  Blackf.  (Ind.)  18,  32  Am.  Dec.  49;  Stevenson  v. 
Crapuell,  114  111.  19,  28  N.  E.  379;  Miller  v.  Fletcher,  27  Grat.  (Va.)  403,  21 
Am.  Rep.  356;  Braman  v.  Bingham,  26  N.  Y.  483;  Cocks  v.  Barker,  49  N.  Y. 
110;  Graves  v.  Tucker,  10  Smedes  &  M.  (Miss.)  9;  Ordinary  of  State  v.  Thatch- 
er, 41  N.  J.  LaAv,  403,  32  Am.  Rep.  225;  Gibson  v.  Partee,  2  Dev.  &  B.  (N.  C.) 
530;  Williams  v.  Higgins,  69  Ala.  517;  Richmond  v.  Morford,  4  Wash.  St. 
337,  30  Pac.  241,  31  Pac.  513;  Hubbard  v.  Greeley,  84  Me.  340,  24  Atl.  799,  17 
L.  R.  A.  511;  Campbell  v.  Jones,  52  Ark.  493,  12  S.  W.  1016,  6  L.  R.  A.  783; 
Dixon  V.  Bank,  102  Ga.  461,  31  S.  E.  96,  66  Am.  St..  Rep.  193. 

In  New  York  it  has  recently  been  held  that  the  rule  does  not  apply  when 
the  insti'ument  does  not  relate  to  real  estate,  at  least  where  it  does  not  re- 
quire a  seal  for  its  validity.  BLEWITT  v.  BOORUM,  142  N.  Y.  357,  37  N.  E. 
119,  40  Am.  St.  Rep.  576.  Quaere,  whether  the  riile  still  prevails  in  England. 
Anson,  Cont.  (8th  Ed.)  53;    HUDSON  v.  REVETT,  5  Bing.  368,  387. 

39  Pi-utsman  v.  Baker,  supra;  Campbell  v.  Thomas,  42  Wis.  437,  24  Am. 
Rep.  427;   Brown  v.  Brown,  66  Me.  316. 

*o  Leake,  Cont.  79. 

41  Leake,  Cont.  79;  POWELL  v.  DUFF,  3  Camp.  181;  WEEKS  v.  MAIL- 
LARDET,  14  East,  568.  Blank  for  sum  of  money  afterwards  filled  in.  HUD- 
SON V.  REVETT,  5  Bing.  368.  Since  authority  to  execute  a  deed  must  be  con- 
ferred by  instinimont  under  seal,  in  strictness  authority  to  fill  a  blank  in  a 
deed  othei'wise  executed  cannot  be  conferred  by  parol.    Many  courts,  however, 


1^^ 


§  33)  CHARACTERISTICS  OF  CONTRACT   UNDER   SEAL.  57 

Deed  Poll  and  Indenture. 

Formerly  there  was  a  distinction  between  a  deed  poll  and  an  in- 
denture. A  deed  poll  was  ajdeed  macle_Jjy_one  party,  and. haying  a 
polled  or  smooth-cut  edge.  Where  a  deed  was  made  by  two  or  more 
parties,  "and  contained  mutual  covenants,  it  was  copied  for  each  on 
the/'Same~parchment,  and  the  copies  cut  apart  with  indented  edges, 
so  as  to  enable  them  to  be  identified  by  fitting  the  parts  together. 
Such  deeds  were  called  indentures.  The  distinction,  even  where  it 
has  not  been  abolished  by  statute,  is  no  longer  of  any  practical  im- 
portance; but  the  terms  are  still  used, — the  term  "deed  poll"  to  sig- 
nify a  deed  made  by  one  party  only,  and  the  term  "indenture,"  a  deed 
made  between  two  or  more  parties,  all  of  whom  execute  it. 


CHARACTERISTICS  OF  CONTRACT  UNDER  SEAX. 

33.    The  cliief  characteristics  of  a  deed  or  contract  under  seal  are  that: 

(a)  The   recitals   are   concliisive   against  the  parties.    They  are   said 

to  be  estopped  thereby. 

(b)  It  merges  a  prior  simple  contract. 

(c)  A  right  of  action  is  not  barred  until  the  lapse  of  a  longer  time 

than   in   case   of    simple    contracts. 

(d)  No  consideration  is  necessary. 

EXCEPTIONS— (1)    Contracts     in     partial     restraint     of     trade, 
though  under  seal,  require  consideration. 

(2)  Where  there  ivas  a  consideration,  it  may  be  shoxcn  to  have 

been  illegal  or  immoral. 

(3)  Courts  of  equity  ivill  not  specifically  enforce  a  deed  Mirithout 

consideration. 

(4)  By  statute  in  some  states  the  distinction  betiveen  sealed  and 

unsealed  instruments  is  abolished,  -while  in  others  a  seal  is 
merely  declared  presumptive,  but  rebuttable,  evidence  of  a 
consideration. 

Estoppel  by  Deed. 

Statements  made  in  a  simple  contract,  though  strong  evidence 
against  the  parties  thereto,  are  not  absolutely  conclusive  against  them, 
but  may  be  contradicted.  Statements  made  in  a  deed,  however,  are 
absolutely  conclusive  against  the  parties  to  the  deed  or  their  privies 
in  any  legal  proceedings  between  them  taken  upon  the  deed.*^     "The 

to-day  recognize  the  validity  of  a  deed  in  which  blanks  have  been  so  filled 
by  an  agent  authorized  by  parol.    See  l^£f.  Ag.  23. 

*2  Carver  v.  Jackson,  4  Pet.  1,  at  page  83,  7  L.  Ed.  761;  Jackson  v.  Park- 
hurst,  9  Wend.  (N.  Y.)  209;  Smith  v.  Burnham,  9  Johns.  (N.  Y.)  306;  Cutler  v. 
Dickinson,  8  Pick.  (Mass.)  386;  Dobbins  v.  Cruger,  108  111.  188;  City  of  Ottawa 
V.  Bank,  105  U.  S.  342,  26  L.  Ed.  1127;  Gerry  v.  Stimson,  60  Me.  186;  Thomp- 
son V.  Smith,  96  Mich.  258,  55  N.  W.  886;  Carson  v.  Cochran,  52  Minn.  67,  53 
N.  W.  1130;  Moore  v.  Earl,  91  Cal.  032,  27  Pac.  10S7;  Chapman  v.  Persinger's 
Ex'x,  87  Va.  581,  13  S.  E.  549;    Billingsley  v.  Harris,  79  Wis.  103,  48  N.  W. 


58  CONTRACTS  UNDER  SEAL.  (Ch.  3 

principle  is  that,  where  a  man  has  entered  into  a  solemn  engagement 
by  and  under  his  hand  and  seal  as  to  certain  facts,  he  shall  not  be 
permitted  to  deny  any  matter  he  has  so  asserted."  *^  Such  a  pro- 
hibition to  deny  facts  is  termed  an  "estoppel  by  deed."  The  statements, 
however,  must  not  be  of  immaterial  matters,  or  matters  by  way  of 
general  recital,  and  the  deed  must  be  valid.**  It  is  settled  also  that 
an  acknowledgment  in  a  deed  of  the  receipt  of  consideration  is  not 
conclusive,  but  may  be  contradicted.*"  Recitals  in  a  deed  are,  of 
course,  only  conclusive  against  the  parties  thereto  and  their  privies, 
or  those  claiming  under  or  through  them.  They  do  not  work  an 
estoppel  as  between  strangers,  nor  as  between  a  stranger  and  a  party 
to  the  deed.** 

Merger. 

Where,  after  making  a  simple  contract,  the  parties  enter  into  an 
identical  engagement  under  seal,  the  simple  contract  is  merged  in 
the  deed,  and  becomes  extinct;  one  cannot  have,  in  respect  of  the 
same  demand,  a  coexisting  remedy,  by  proceeding  both  on  covenant 
and  on  simple  contract.*^  This  extinction  is  called  "merger."  The 
contracts,  however,  must  be  the  same, — that  is,  the  subject-matter 
must  be  identical, — and  they  must  be  between  the  same  parties.*^ 


108;  Metropolitan  Ins.  Co.  v.  McCoy,  124  N.  Y.  47,  26  N.  B.  345,  11  L.  R.  A. 
708;  Rogers  v.  Bollinger,  59  Ark.  12,  26  S.  W.  12;  Balue  v.  Taylor,  136  Ind. 
368,  36  N.  E.  269;  Johnston  v.  Oliver,  51  Ohio  St.  6,  36  N.  K  458;  Willis  v. 
Terry  (Kj.)  24  S.  W.  621. 

43  Bowman  v.  Taylor,  2  Adol.  &  E.  278. 

4  4  Wallace's  Lessee  v.  Miner,  6  Ohio,  367;  Zimmler  v.  Water  Co.,  57  Cal. 
221. 

4B  Wilkinson  v.  Scott,  17  Mass.  249;  Irvine  v.  McKeon,  23  Cal.  472;  Witbeck 
V.  Waine,  16  N.  Y.  532;  W^hite  v.  Miller,  22  Vt.  380;  Thayer  v.  Viles,  23  VL 
494;  McCrea  v.  Purmort,  16  Wend.  (N.  Y.)  460,  30  Am.  Dec.  103;  Pritchard 
v.  Brown,  4  N.  H.  397,  17  Am.  Dec.  431;  Smith  v.  Arthur,  110  N.  C.  400,  15 
S.  E.  197;   Union  Mut.  Ins.  Co.  v.  Kirchoff,  133  111.  368,  27  N.  E.  91. 

4  6  Thomason  v.  City  of  Dayton,  40  Ohio  St.  63;  Allen  v.  Allen,  45  Pa.,  at 
page  473;  Brittain  v.  Daniels,  94  N.  C.  781;  Reeves  v.  Bray  ton,  36  S.  C.  384, 
15  S.  E.  658. 

4  7  Price  V.  Moulton,  10  C.  B.  561;  Banorgee  v.  Hovey,  5  Mass.  11,  4  Am. 
Dec.  17;  Leonard  v.  Hughlett.  41  Md.  380;  Curson  v.  Monteiro,  2  Johns.  (N. 
Y.)  308;  Rhoads  v.  Jones,  92  Ind.  328;  Robbins  v.  Ayres,  10  Mo.  538,  47  Am. 
Dec.  125;  McNaughten  v.  Partridge,  11  Ohio,  223,  28  Am.  Dec.  731;  Burnes  v. 
Allen,  31  N.  C.  370;  Berry  v.  Bacon,  28  Miss.  318;  Griswold  v.  Eastman,  51 
Minn.  189,  53  N.  W.  542;  Shenandoah  Valley  R.  Co.  v.  Dunlop,  86  Va.  346, 
10  S.  E.  239.  But  see  Shelby  v.  Railroad  Co.,  143  111.  385,  32  N.  E.  438;  Sa- 
ville  V.  Chalmers,  76  Iowa,  325,  41  N.  W.  30;   post,  p.  478. 

4  8  Hutchins  v.  Hebbard,  34  N.  Y.  24;  Day  v.  Leal,  14  Johns.  (N.  Y.)  404. 
If  the  contract  under  seal  Is  expressly  received  as  collateral  security  for  per- 
formance of  the  simple  contract,  or  if  it  merely  recognizes  the  debt,  and  fixes 
the  mode  of  ascertaining  its  amount,  there  is  no  merger.  Marryat  v.  Marryat, 
28  Beav.  224;   Van  Vleit  v.  Jones,  20  N.  J.  Law,  310,  43  Am.  Dec.  633;    Rees 


§  33)  CHARACTERISTICS   OF   CONTRACT    UNDER   SEAL.  59 

Limitation  of  Actions. 

A  right  of  action  arising  out  of  a  simple  contract  is  barred  by  the 
lapse  of  a  shorter  period  of  time  than  a  right  of  action  arising  out  of 
a  contract  under  seal.  The  respective  periods  vary  somewhat  under 
the  statutes  of  the  different  states,  but  generally  an  action  on  a  simple 
contract  is  barred  in  six  years  or  less,  while  an  action  on  a  sealed 
instrument  is  not  barred  if  brought  within  ten,  or,  in  some  jurisdic- 
tions, twenty,  years. 

Gratuitous  Promises. 

At  common  law,  a  gratuitous  promise,  or  promise  for  which  the 
promisor  obtains  no  consideration,  is  binding  if  made  under  seal,** 
but  is  absolutely  void  in  the  absence  of  a  seal.  This  characteristic 
of  contracts  under  seal  is  often  accounted  for  on  the  ground  that 
their  solemnity  imports  a  consideration,  but  the  supposition  is  his- 
torically untrue.  At  common  law,  even  if  it  were  allowable  to  show 
that  there  is  no  consideration  for  a  deed,  and  if  the  obligee  or  grantee 
were  to  admit  that  there  was  no  consideration,  it  could  not  affect  the 
validity  of  the  deed.  It  derives  its  validity  solely  from  its  form.  The 
doctrine  of  consideration  is  of  a  much  later  date  than  that  at  which  a 
contract  under  seal  was  in  full  efficacy,  an  efficacy  which  it  owed 
entirely  to  its  form.^'* 

Same — Exceptions  at  Common  Law. 

Even  at  common  law  a  contract  in  partial  restraint  of  trade,  though 
made  under  the  formality  of  a  seal,  must  be  supported  by  a  con- 
sideration.''^ 

And  as  a  general  rule,  if  there  be  a  consideration  for  a  deed,  it  is 
open  to  the  party  sued  on  the  contract  to  show  that  the  consideration 
was  illegal  or  immoral,  in  which  case  the  deed  is  void.^^ 

V.  Logsdon,  68  Md.  93,  11  All.  708;   Brengle  v.  Bushey,  40  Md.,  at  page  147, 
17  Am.  Rep.  586;   Charles  v.  Scott,  1  Serg.  &  R,  (Pa.)  294;   post,  p.  478. 

*9  2  Bl.  Comm.  446;  Cooch  v.  Goodman,  2  Q.  B.  580;  Fallowes  v.  Taylor,  7 
Term  R.  475;  McMILLAJSI  v.  AMES,  33  Minn.  257,  22  N.  W.  612;  Dorr  v. 
Munsell,  13  Johns.  (N.  Y.)  430;  Van  Valkenburgh  v.  Smith,  60  Me.  97;  Har- 
ris V.  Harris'  Ex'r,  23  Grat.  (Va.)  737;  Wing  v.  Peck,  54  Vt.  245;  Page  v.  Tru- 
fant,  2  Mass.  159,  3  Am.  Dec.  41;  State  v.  Gott,  44  Md.  341;  EdelLn  v.  San- 
ders, 8  Md.  118;  Day  v.  Davis.  64  Miss.  253,  8  South.  203. 

50  Anson,  Cont.  (4th  Ed.)  49. 

51  Mallan  v.  May,  11  Mees,  &  W.  665;  Palmer  v.  Stebbins,  3  Pick.  (Mass.) 
188,  15  Am.  Dec.  204;  Wiley  v.  Baumgardner,  97  Ind.  68,  49  Am.  Rep.  427; 
Keeler  v.  Taylor,  53  Pa.  467,  91  Am.  Dec.  221.  Of  course  this  does  not  apply 
to  contracts  that  are  to  such  an  extent  in  restraint  of  trade  as  to  be  contrary 
to  public  policy.  Such  contracts  are  void,  as  being  illegal,  ■v\'ithout  regard 
to  the  question  of  consideration.  Alger  v.  Thacher,  19  Pick.  (Mass.)  51,  31 
Am.  Dec.  119.    See  post,  p.  305. 

52  Collins  V.  Blautern,  1  Smith,  Lead.  Cas.  369;  Logan  v.  Plummer,  70  N. 
C.  3SS.    And  see  Paxton  v.  Popham,  9  East,  421. 


60  CONTRACTS  UNDER   SEAL.  (Ch. 


Same — Exceptions  in  Equity. 

The  idea  of  consideration  as  a  necessary  element  of  contract  has 
always  met  with  peculiar  favor  in  courts  of  chancery.  Equity  will 
not  grant  its  peculiar  remedy  of  specific  performance,  nor  exercise 
its  peculiar  power  to  correct  mistakes  and  reform  contracts,  where 
the  promises  are  without  consideration,  even  though  they  are  under 
seal.^^  So,  also,  in  the  exercise  of  its  peculiar  power  of  declaring  a 
contract  void  and  setting  it  aside  on  the  ground  of  fraud  and  undue 
influence,  it  will  look  into  the  question  of  consideration,  and  absence 
of  consideration  will  be  regarded  as  corroborative  evidence  of  fraud 
and  undue  influence.^* 

Even  a  court  of  equity,  however,  will  not  relieve  a  person  from  his 
obligation  under  a  sealed  contract,  simply  for  want  or  failure  of  con- 
sideration.''^ 

Same — Statutory  Changes  in  the  Law. 

In  some  of  the  states  the  common-law  rules  in  relation  to  sealed 
instruments  have  been  either  altogether  abolished  or  greatly  modified 
by  statute.  In  some  states  it  is  declared  that  any  written  instrument, 
whether  under  seal  or  not,  is  presumptive  evidence  of  a  consideration, 
and  all  distinctions  between  sealed  and  unsealed  instruments  are  ex- 
pressly abolished,  and  in  these  states  want  or  failure  of  consideration 
may  always  be  shown,  even  though  the  instrument  is  sealed.^® 

In  other  states  the  distinction  between  sealed  and  unsealed  instru- 
ments is  not  altogether  abolished ;  but  it  is  declared  that  the  seal 
shall  only  be  presumptive  evidence  of  a  sufficient  consideration,  which 
may  be  rebutted  in  the  same  manner  and  to  the  same  extent  as  if  the 
instrument  were  not  sealed.  The  New  Jersey  court,  in  an  action  on 
a  sealed  note  presented  by  a  father  to  his  daughter  as  a  gift,  held  that 
such  a  statute  as  this  did  not  abolish  all  distinctions  between  simple 
contracts  and  specialties,  but  merely  established  new  rules  of  evidence, 
for  the  purpose  of  allowing  parties  to  an  instrument  under  seal  to 
show  that  there  was  no  consideration,  where  they  intended  that  there 
should  be  a  consideration ;  and  that  it  did  not  make  it  impossible 
for  parties  intentionally  to  enter  into  binding  gratuitous  promises.'^ 

B3  Smith  V.  Wood,  12  Wis.  425 ;  Bayler  v.  Com.,  40  Pa.  37,  80  Am.  Dec.  551 ; 
Black  V.  Ck)rd,  2  Har.  &  G.  (Md.)  100;  Keffer  v.  Grayson,  76  Va.  517,  44  Am. 
Rep.  171;   Snyder  v.  Jones,  38  Md.  542;  Anon.,  12  Mod.  603. 

6  4  Hazard  v.  Irvvin,  18  Pick.  (Mass.)  95;  Goudy  v.  Gebhart,  1  Ohio  St.  202; 
Mortland  v.  Mortland,  151  Pa.  593,  25  Atl.  150. 

5  5  Doughty  V.  Miller,  50  N.  J.  Eq.  529,  25  Atl.  153. 

58  There  are  such  statutes  as  this  in  California,  Kentucky,  Indiana,  Iowa, 
Kansas,  and  probably  in  other  states. 

»7  ALIvER  V.  ALLER,  40  N.  J.  Law,  446. 


g  84)  NECESSITY    FOR   CONTRACT   UNDER   SEAL.  61 


NECESSITY  FOR  CONTRACT  UNDER  SEAL. 

34.    A  contract  under  seal  is  necessary  at  common  la-w^ 

(a)  Wliere   the   promise   is   vrithont   consideration. 

(b)  Formerly,    corporations    could    only    contract    under    seal,    T^th 

some   tew   exceptions;     but   ^^itb   us   tbey   can   make   contracts 
wbich  tliey  Iiave  the  power  to  enter  into  in  the  same  manner 
as  a  natural  person,  unless  restricted  by  charter. 
(o)    Conveyances    of    land    are    in    most    jurisdictions    required   to    be 
under  seal. 

It  is  usually  a  matter  of  choice  with  persons  whether  they  will 
contract  by  word  of  mouth  or  simply  in  writing,  or  in  writing  under 
seal;  but  in  some  cases,  either  at  common  law  or  by  statute,  it  is 
necessary  to  employ  the  form  of  a  deed. 

At  Common  Law — Gratuitous  Promises — Contracts  with  Corpora- 
tions. 

There  are  two  cases  in  which  the  old  common  law  required  that  a 
contract  should  be  made  under  seal,  namely:  (i)  Where  the  contract 
was  not  founded  on  a  consideration;  and  (2)  where  it  was  made  by  a 
corporation. 

A  gratuitous  promise,  or  contract  for  which  there  is  no  considera- 
tion, must  be  made  by  deed;  otherwise  it  will  be  void.  This  has 
already  been  shown  to  furnish  a  distinguishing  characteristic  between 
contracts  under  seal  and  simple  contracts.  It  is  unnecessary  to  say 
more  on  the  subject. 

Under  the  old  common  law  the  rule  was  that,  with  a  few  excep- 
tions, a  corporation  could  only  contract  under  the  corporate  seal,  but 
this  rule  has  long  been  repudiated  in  this  country,  and  now  a  corpo- 
ration, unless  restricted  by  its  charter  or  by  statute,  may  contract  in 
the  same  manner  as  a  natural  person.  This  will  be  more  fully  ex- 
plained in  another  connection.^® 

Conveyances  of  Land. 

At  common  law,  a  conveyance  of  land  was  not  required  to  be  bv 
deed,  but  in  most  jurisdictions  this  is  necessary.  It  is  not  necessary 
to  go  into  the  question,  as  it  belongs  more  properly  to  the  subject 
of  real  property.  Sometimes  a  seal  is  made  necessary  by  statute  in 
the  case  of  particular  contracts. 

88  Post,  p.  192. 


62  STATUTE  OF   FRAUDS.  (Ch.  4 

CHAPTER  IV. 

CONTRACTS  REQUIRED  TO  BE  IN  WRITING— STATUTE  OP  FRAUDS. 

35-36.     In  General  of  Requirement  of  Writing. 

37.  Statute  of  Frauds— In  General. 

38.  Contracts  within  Section  4. 

39.  Promise  by  Executor  or  Administrator. 

40.  Promise  to  Answer  for  Debt,  Default,   or  Miscarriage  of 

Another. 

41.  Agreement  in  Consideration  of  Marriage. 

42.  Contract  or  Sale  of  Lands. 

43.  Agreement  not  to  be  Performed  within  One  Year. 
44r^9.  Form  Required. 

50-51.  Effect  of  Noncompliance. 

52-55.  Contracts  within  Section  17. 
56.  Acceptance  and  Receipt. 

57-58.  Earnest  and  Part  Payment 

59.  Form  Required. 

60.  Effect  of  Noncompliance. 

IN  GENERAL  OF  REQUIREMENT  OF  WRITING. 

35.  At  common  laxtr,  bilLs  of  ezchajige  and  promissory  notes  mnst  be 

in  w^riting. 

36.  By  statute,  writing  is  in  some  states  declared  necessary  for  tlie 

follo\(ring  contracts: 

(a)  Acceptance  of  a  bill  of  exchange  or  otber  order  for  tbe  pajrment 

of  money. 

(b)  Acknoteledgment  of  a  debt  barred  by  tbe  statute  of  limitations. 

(c)  "New  promise  by  infant  after  attaining  bis  majority. 

(d)  By  the  statute  of  frauds  xtrriting  is  necessary  in  certain  specified 

contracts. 

In  the  preceding  chapter  we  have  dealt  with  those  contracts  which 
acquire  vahdit)'  by  reason  of  their  form  alone,  and  we  now  pass  to 
simple  or  parol  contracts,  which  depend  for  their  validity  upon  the 
presence  of  consideration.  As  we  have  seen,  however,  there  are  some 
simple  contracts  which,  while  not  in  the  solemn  form  of  a  deed  or 
record,  are  required  by  law  to  be  in  writing,  and  which,  therefore, 
depend  not  only  on  the  presence  of  consideration,  as  in  the  case  of 
other  simple  or  parol  contracts,  but  also  on  their  form.  These  con- 
tracts, in  so  far  as  their  form  is  concerned,  we  shall  deal  with  in  the 
present  chapter. 

Independently  of  any  requirement  of  law  as  to  form,  an  agreement 
which  might  be  made  orally  may  require  writing,  because  of  the  in- 


§§  35-36)        IN   GENERAL   OF   REQUIREMENT    OF    WRITING.  63 

tention  of  the  parties  not  to  be  bound  until  their  agreement  is  reduced 
to  writing.  We  have  considered  the  question  in  treating  of  offer  and 
acceptance.^ 

Common  Law. 

The  only  requirement  of  form  for  simple  contracts  which  can  be 
said  to  exist  independently  of  statute  is  in  the  case  of  negotiable  bills 
of  exchange  and  promissory  notes.  A  bill  of  exchange  is  a  kind  of 
contract  which  originated  in  the  custom  of  merchants,  and  which  is 
designed  to  take  the  place  of  money,  to  some  extent,  as  a  circulating 
medium ;  and  from  its  very  nature  and  use  as  a  negotiable  instru- 
ment it  must  be  in  writing.  The  same  may  be  said  of  promissory 
notes,  which,  whether  by  statute  or  the  law  merchant,  are  negotiable, 
and  stand  on  the  same  footing  as  bills  of  exchange.  Besides  the 
mere  necessity  of  writing,  these  instruments  are  required  by  law  to 
be  in  a  particular  form,  but  this  is  matter  more  properly  for  a  work 
on  negotiable  instruments. 

Statutory  Requirements  of  Form. 

The  statutory  requirements  of  form  in  simple  contracts  are  mainly 
to  be  found  in  the  statute  of  frauds,  but  before  going  into  these  we 
must  notice  some  others  which  are  not  so  general. 

Ordinarily,  a  bill  of  exchange  or  other  order  for  the  payment  of 
money  may  be  accepted  orally,  but  by  statute,  in  some  states,  the 
acceptance  is  required  to  be  in  writing.* 

At  common  law,  a  contract  of  insurance  need  not  necessarily  be 
evidenced  by  a  written  policy.^  In  some  of  the  states,  however,  stat- 
utes have  been  enacted  prescribing  particular  forms  for  such  con- 
tracts. 

In  some  of  the  states  an  acknowledgment  of  a  debt  barred  by  the 
statute  of  limitations  is  required  to  be  in  writing,  and  signed  by  the 
debtor,  in  order  to  take  the  debt  out  of  the  statute. 

In  some  states,  a  promise  by  a  person,  after  becoming  of  age,  to 
pay  a  debt  contracted  during  his  infancy,  is  required  by  statute  to 
be  in  writing.* 

1  Ante,  pp.  28,  42.  «  Norton,  B.  &  N.  (3d  Ed.)  91,  99. 

8  Relief  Fire  Ins.  Co.  t.  Shaw,  94  U.  S.  574,  24  L.  Ed.  291;  Sanborn  v.  In- 
surance Co.,  16  Gray  (Mass.)  448,  77  Am.  Dec.  419;  First  Baptist  Cliurch  v. 
Insurance  Co.,  19  N.  Y.  305;  Ellis  v.  Insurance  Co.,  50  N.  Y.  402,  10  Am.  Rep. 
495;  Nebraska  &  I.  Ins.  Co.  v.  Seivers,  27  Neb.  541,  43  N.  W.  351;  Zell  v.  In- 
surance Co.,  75  Wis.  521,  44  N.  W.  828;  Wooddy  v.  Insurance  Co.,  31  Grat. 
CS'a.)  3G2,  31  Am.  Rep.  732;  Putnam  v.  Insurance  Co.,  123  Mass.  324,  25  Am. 
Rep.  93;  Hard^^ick  v.  Insurance  Co.,  20  Or.  547,  26  Pac.  840;  Stickley  v.  Mo- 
bil* Ins.  Co.,  37  S.  C.  56,  16  S.  E.  280,  838;  Howard  Ins.  Co,  v.  Owen's  Adm'r, 
94  Ky.  197,  21  S.  W.  1037. 

*  Post,  p.  167. 


64  STATUTE  OF  FRAUDS.  (Ch.  4 

By  act  of  congress  assignments  of  patents  and  copyrights  are  re- 
quired to  be  in  writing."^ 

In  most,  if  not  in  all,  the  states  there  are  statutes  regulating  the 
mode  of  conveying  land,  and  requiring  writing,  together  with  other 
formalities.  In  some  states  a  deed  is  required.  This,  however,  is  a 
matter  more  properly  for  a  work  on  real  property. 

CI  ^-r^  STATUTE  OF  FRAUDS. 

The  famous  statute  of  frauds  and  perjuries,  29  Car.  II.  c.  3,  was 
enacted  in  England  in  1677,  and,  as  stated  in  its  recital,  had  for  its 
object  the  "prevention  of  many  fraudulent  practices,  which  are  com- 
monly endeavored  to  be  upheld  by  perjury  and  subornation  of  perjury." 

The  original  statute,  which  is  substantially  followed  by  the  statutes 
of  most  of  our  states,  contains  two  sections — the  fourth  and  the  seven- 
teenth— which  affect  the  form  of  certain  simple  contracts.' 

This  statute  has  been  substantially  followed  by  the  statutes  of  most 
of  our  states,  but  in  some  states  the  statute  is  materially  different. 
These  variations  will  be  noticed  as  we  go  along. 

As  the  seventeenth  section  differs  materially  from  the  fourth,  it 
will  be  better  to  treat  them  separately.  In  doing  so  we  shall  consider 
(i)  the  nature  of  the  contracts  specified,  (2)  the  form  required,  and  (3) 
the  effect  of  failure  to  comply  with  the  provisions  of  the  statute. 


STATUTE  OF  FRAUDS— IN  GENERAL. 

37.    The  statute  does  not  apply  to^ 

(a)  Contracts  created  by  laiir. 

(b)  Instruments  created  under,  and  deriving  tlieir  obligation,  from, 

special  statutes. 

(c)  Executed  contracts. 

Before  taking  up  in  turn  the  special  contracts  specified  in  these  sec- 
tions, it  is  proper  to  state  the  kinds  of  contract  generally  to  which  the 
statute  does  not  apply. 

In  the  first  place,  it  applies  only  to  contracts  made  in  fact;  it  does 
not  include  so-called  contracts  created  by  law,  or  quasi  contracts.  If 
a  duty  is  imposed  by  law  to  pay  money  or  perform  other  duties,  with- 
out an  agreement  or  promise  in  fact,  no  writing  is  necessary  to  sup- 
port an  action  on  the  implied  assumpsit.'' 

6  Rev.  St  U.  S.  §§  4898,  4955  [U.  S.  Comp.  St  1901,  pp.  3387,  3407]. 
«  For  the  provisious  of  sections  4  and  17,  see  post,  PP-  65,  97. 

7  Goodwin  v.  Gilbert  9  Mass.  510;  Arnold  v.  Garst,  16  R.  I.  4,  11  Atl.  167; 
Pilie  V.  Brown,  7  Cusli.  (Muss.)  133;    Sage  v.  Wilcox,  6  Conn.,  at  page  84; 


§  38)  CONTRACTS   WITHIN   SECTION   4  G5 

Nor  does  the  statute  apply  to  such  instruments  as  are  created  un- 
der, and  derive  their  obligation  from,  special  statutes,  without  the 
acceptance  or  assent  of  the  party  for  whose  ultimate  benefit  they  are 
given, — as  in  the  case  of  an  undertaking  on  appeal,  the  requisites 
of  which  are  prescribed  by  a  special  statute.® 

Nor  does  the  statute  have  any  effect  where  the  contract  has  been 
executed  on  both  sides,  for  the  purpose  of  the  statute  is  to  exclude 
parol  evidence  of  the  contracts  within  their  provisions,  and  not  to 
prohibit  execution  of  oral  contracts.  It  applies  to  executory  con- 
tracts only.®  We  shall  see,  in  treating  of  the  particular  kinds  of  con- 
tracts, that  under  some  circumstances  part  performance  may  ta|<e 
them  out  of  the  statute. 

Oral  agreements,  modifying  prior  written  contracts,  are  within  the 
statute  ;^'^  but  it  seems  that  a  subsequent  contract  for  a  waiver  or 
abandonment  of  the  original  contract  is  valid.  ^^ 


SAME— CONTRACTS    W^ITHIN    SECTION    4, 

38.  The  fourth  section  of  the  English  statute,  -which  has  been  sub- 
stantially folIoTred  in  most  of  the  states,  enacts:  "That  no 
action  shall  be  brought. 

(a)  "Whereby   to    charge    any    executor    or   administrator  upon   any 

special  promise,  to  answer  damages  out  of  his  o\pn  estate; 

(b)  "Or  whereby  to  charge  the  defendant  upon  any  special  promise 

to  answer  for  the  debt,  default,  or  miscarriage  of  another  per- 
son; 

(c)  "Or  to  charge  any  person  upon  any  agreement  made  upon  con- 

sideration of  marriage; 

Smith  V.  Bradley,  1  Root  (Conn.)  150 ;    Howard  v.  Wbitt  (Ky.)  2  S.  W.  776 ; 
post,  p. ,  note . 

8  Thompson  v.  Blanchard,  3  N.  Y.  335;   Doolittle  v.  Dininny,  31  N.  Y.  350. 

9  Stone  V.  Denuison,  13  Pick.  (Mass.)  1,  23  Am.  Dec.  G54;  Lord  Bolton  v. 
Tomlin,  5  Adol.  &  El.  856 ;  Brown  v.  Trust  Co.,  117  N.  Y.  266,  22  N.  E.  952 : 
Schu'ltz  V.  Noble,  77  Cal.  79,  19  Pac.  182;  Swanzey  v.  Moore,  22  111.  63,  74 
Am.  Dec.  134;  James  v.  Morey,  44  111.  352;  Bibb  v.  Allen,  149  U.  S.  481,  13 
Sup.  Ot.  950,  37  L.  Ed.  819;  Webster  v.  Le  Compte,  74  Md.  249,  22  Atl. 
232;  Baldock  v.  Atwood,  21  Or.  73,  26  Pac.  1058;  Pireaux  v.  Simon,  79 
Wis.  392,  48  N.  W.  674;  Anderson  School  Tp.  v.  Milroy  Lodge,  130  lud.  lOS, 
29  N.  E.  411,  30  Am.  St.  Rep.  206;  Harris  v.  Harper,  48  Kan.  418,  29  Pac.  697; 
Doherty  v.  Doe,  18  Colo.  456,  33  Pac.  105;  Lagerfelt  v.  McKie,  100  Ala.  430,  14' 
South.  281. 

10  Stead  v.  Dawber,  10  Adol.  &  E.  57;  Marshall  v.  Lynn,  6  Mees.  &  W.  109; 
Swain  v.  Seameus,  9  Wall.  254,  19  L.  Ed.  554;  Hill  v.  Blake,  97  N.  Y.  216; 
Abell  V.  Munson,  18  Mich.  306.  100  Am.  Dec.  165;  Burns  v.  Real-Estate  Co., 
52  Minn.  31,  53  N.  W.  1017;  WALTER  v.  VICTOR  G.  BLOEDE  CO.,  94  Md. 
80,  50  Atl.  433.  Contra:  CUMMINGS  v.  ARNOLD,  3  Mete.  (Mass.)  486,  37 
Am.  Dec.  155;  Stearns  v.  Hall,  9  Cush.  (Mass.)  31;  WhitUer  v.  Dana,  10  Al- 
len (Mass.)  326;  Negley  v.  Jeffers,  28  Ohio  St.  90. 

11  Post,  p. . 

Clask  Conx.  (2d  Ed.) — 5 


66  STATUTE  OF  FRAUDS,  (Ch.  4 

(d)  "Or  upon  any  contract    or  sale  of  lands,  tenements,  or  heredita- 

ments, or  any  interest  in  or  concerning  them; 

(e)  "Or  upon   any   agreement   that  is    not   to   be   performed  xrithin 

the  space  of  one  year  from  the  making  thereof; 
"Unless  the  agreement  upon  w^hich  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed   by  the   party   to   be   charged  therexcrith,    or   some   other 
person  thereunto  by  him  laiirfully  authorized." 


SAME— PROMISE   BY   EXECUTOR   OR   ADMINISTRATOR. 

39.   The  statute  applies  only  to  promises— 

(a)  To  ans-nrer  for  debts  or  liabilities  of  the  deceased,  and 

(b)  To  ansiver  for  them  out  of  the  property  of  the  promisor. 

An  executor  or  administrator  may  sue  or  be  sued  upon  obligations 
devolving  upon  him  as  the  representative  of  the  deceased,  and  he 
may  be  compelled  to  carry  out  the  directions  of  the  deceased  in  re- 
spect of  legacies,  or  to  give  effect  to  the  rules  of  law  relating  to  the 
division  of  the  estate  of  an  intestate;  but  in  neither  case  is  he  bound 
to  pay  anything  out  of  his  own  pocket.  His  liabilities  are  limited 
by  the  assets  of  the  deceased.  He  may,  however,  if  he  chooses,  to 
save  the  credit  of  the  deceased,  or  for  any  other  reason,  make  prom- 
ises to  answer  for  damages  or  pay  debts — which  is  included  in  the 
expression,  "answer  damages" — out  of  his  own  estate;  but,  in  order 
that  the  promise  may  be  binding  on  him,  it  must  be  in  writing,  signed 
by  him  or  his  agent. 

The  statute  only  applies  to  promises  to  answer  for  debts  or  lia- 
bilities of  the  decedent.  It  does  not  apply  to  original  undertakings 
by  the  executor  or  administrator,  and  a  promise,  therefore,  by  an 
executor  to  pay  the  heir  money  if  he  will  forbear  further  opposition 
to  the  probate  of  the  will,  is  not  within  the  statute. ^^  Nor  does  it 
apply  to  promises  to  pay  debts  of  the  decedent  out  of  the  assets  of 
the  estate.^* 


SAME— PROMISE    TO    ANSW^ER    FOR   DEBT,    DEFAULT,    OR   MIS- 
CARRIAGE OF  ANOTHER. 

40.    The  foUo'tving  points  should  be  noted: 

(a)    The  debt,  default,  or  miscarriage  must  be  that  of  "another  per- 
son," and,  therefore,  for  the  statute  to  apply, 
(1)    There  must  be  either  a  present  or  prospective  primary  liabil- 
ity of  a  third  person  for  which  the  promisor  agrees  to  an- 
■urer.     He  must  not  himself  be  or  become  primarily  liable. 

11  BELLOWS  V.  SOWLES,  57  Vt.  1G4.  52  Am.  Rep.  11&  And  see  Fehlin- 
ger  V.  Wood,  134  Pa.  517,  19  Atl.  746;  Wales  v.  Stout,  115  N.  Y.  638,  21  N.  B. 
1027. 

i»  Stebbins  v.  Smith,  4  Pick.  (Mass.)  97;  Pratt  v.  Humphrey,  22  Conn.  317. 


§  40)  PROMISE    TO    ANSWER    FOR   DEBT,  ETC.,  OF   ANOTHER.  G7 

(2)    Tlie  liability  of  the  third  person,  therefore,  must  continue. 
Cb)    A    promise    xrhich    contemplates    payment    out    of    the    debtor's 
property  in  the  hands  of  the  promisor  is  not  vrithin  the  statute. 

(c)  Nor  is  a  promise  to  the  debtor  to  pay  his  debt.      This  generally 

includes  contracts  of  indemnity,  though,  if  the  promise  be  to  an- 
siver  for  another's  debt,  it  is  \Fithin  the  statute,  notwithstand- 
ing it  is  in  the  form  of  a  contract  of  indemnity. 

(d)  Nor,  according  to  the  w^eight  of  authority,  does  the  statute  apply 

\phere  the  leading  object  of  the  promisor  is  to  subserve  some 
purpose  of  his  own,  and  his  promise  is  merely  incidental. 

"Debt,  Default,  or  Miscarriage'* 

The  words  "debt,  default,  or  miscarriage"  include  all  Habilities  of 
a  third-_person,  however  they  may  arise,  and  therefore  include  liabili- 
±ies--arising  out  of  a  wrong  or  tort,  as  well  as  those  arising  out  of 
contract.^*  They  also  include .prosp^ective  as  well  as  existing  liabili- 
ties. "If  the  future  primary  liability  of  a  principal  is  contemplated 
as  the  basis  of  the  promise  of  a  guarantor,  such  promise  is  within 
the  statute  of  frauds,  precisely  as  it  would  be  if  the  liability  existed 
when  the  promise  was  made."  ^' 

"Of  Another  Person." 

The  promise  contemplated  by  the  statute  is  a  promise  to  answer 
for  the  debt,  default,  or  miscarriage  of  "another  person ;"  or,  in  other 
words,  a  contract  of  guaranty  or  suretyship.  The  statute  does  not 
apply  to  original  promises  or  undertakings,  though  the  benefit  ac- 
crues to  another  than  the  promisor.  There  must  be  three  parties  in 
contemplation, — a  person  who  is  actually  or  prospectively  liable  to 
another  person,  and  a  third  person  who  promises  the  creditor  to  an- 
swer for  the  debt  or  liability ;  or,  in  other  words,  a  creditor,  a  prin- 
cipal debtor,  and  a  guarantor  of  the  debt,  or  surety.  Though  there 
is  considerable  conflict  between  the  courts  in  their  construction  of  this 
clause  of  the  statute,  the  following  rules  for  determining  whether  a 
contract  comes  within  it  are  established  by  the  weight  of  authority : 

(a)  There  must  be  either  a  present  or  prospective  liability  of  a  third 
person  for  which  the  promisor  agrees  to  answer.  If  the  promisor 
becomes  himself  primarily,  and  not  collaterally,  liable,  the  promise  is 
not  within  the  statute,  though  the  benefit  from  the  transaction  ac- 
crues to  a  third  person,^®     If,  for  instance,  two  persons  come  into  a 

14  Kirkham  v.  Marter,  2  Barn.  &  Aid.  613;  Turner  v.  Hubbell,  2  Day 
(Conn.)  457,  2  Am.  Dec,  115;  Mountstepben  v.  Lakeman,  L.  R.  7  Q.  B,  202, 

10  Mead  v.  Watson,  57  Vt.  42G.  And  see  Matson  v.  Wbaram,  2  Term  R. 
80;   Matthews  v.  Milton,  4  Yerg.  (Tenn.)  576,  26  Am.  Dec.  247. 

16  Baldwin  v.  Hiers,  73  Ga.  739;  Morris  v.  Osterhout,  55  Mich.  262,  21  N, 
W.  339;  De  Witt  v.  Root.  IS  Neb.  5G7,  26  N.  W.  300.  Where  an  agent  has  be- 
come liable  to  his  principal  by  lending  money  contrary  to  insti'uctions.  his 
guaranty  of  the  loan  is  not  within  the  statute.  Crane  v.  Wheeler,  4S  Minn. 
207,  50  N.  W,  1033,    A  promise  by  a  married  woman  to  pay  her  parent  for  her 


G8  STATUTE  OF  FRAUDS.  (Ch.  4 

Store,  and  one  buys,  and  the  other,  to  gain  him  credit,  promises  the 
seller,  "If  he  does  not  pay  you,  I  will,"  this  is  a  collateral  under- 
taking, and  must  be  in  writing;  but  if  he  says,  'Xet  him  have  the 
goods,  and  I  will  pay,"  or  "I  will  see  you  paid,"  and  credit  is  given 
to  him  alone,  he  is  himself  the  buyer,  and  the  undertaking  is  orig- 
inal.^^  In  other  words,  whether  the  promise  in  such  a  case  is  within 
the  statute  depends  on  how  the  credit  was  given.  If  it  was  given 
exclusively  to  the  promisor,  his  undertaking  is  original;  ^^  but  it  is 
collateral  if  any  credit  was  given  to  the  other  party/ ^ 

(b)  Even  though  there  is  an  existing  liability  of  a  third  person  for 
which  the  promisor  undertakes  to  answer,  still  the  promise  is  not  with- 
in the  statute  if  the  terms  are  such  that  it  effects  an  extinguishment 
of  such  liability;  in  other  words,  the  liability  of  the  original  debtor 
must  continue.  A  promise  to  pay  another's  debt  in  consideration  of 
the  creditor's  doing  something  which  will  extinguish  his  claim  against 
the  debtor,  and  release  him  absolutely,  need  not  be  in  writing.^ °     To 

support  was  held  a  promise  to  pay  her  husband's  debt.  Perkins  v.  West- 
coat,  3  Colo.  App.  338,  33  Pac.  139. 

17  Birkmyr  v.  Darnell,  Salk.  27;  Hartley  v,  Varner,  88  111.  561;  Nelson  v. 
Boynton,  3  Mete.  (Mass.)  396,  37  Am.  Dee.  148;  Greene  v.  Burton,  59  Vt.  423, 
10  All.  575;  Geelan  v.  Reid,  22  111.  App.  165;  Higgins  v.  Hallock,  60  Hun, 
125,  14  N.  Y.  Supp.  550;  Boston  v.  Farr,  148  Pa.  220,  23  Atl.  901;  Crowder  v. 
Keys,  91  Ga.  180,  16  S.  E.  986.  The  same  is  true  where  a  person  says:  "If  I 
am  to  do  certain  work  for  M.,  I  must  be  assured  of  payment  by  some  one," 
and  the  person  addressed  says,  "Do  it,  and  I  will  see  you  paid."  Mountste- 
pheu  V.  Lakeman,  L.  R.  7  H.  L.  17.  And  see  cases  cited  above  and  in  the 
following  notes. 

18  Chase  v.  Day,  17  Johns.  (N.  Y.)  114;  Hartley  v.  Varner,  88  111.  561;  Myer 
V.  Grafflin,  31  Md.  350,  100  Am.  Dec.  66;  Grant  v.  Wolf,  34  Minn.  32,  24  N.  W. 
289;  Ellis  v.  Murray,  77  Ga.  542;  Hagadorn  v.  Stronach  Lumber  Co.,  81  Mich. 
56,  45  N.  W.  650;  Peyson  v.  Conniff,  32  Neb.  269,  49  N.  W.  340;  Mackey  v. 
Smith,  21  Or.  598,  28  Pac.  974;  Herendeen  Mfg.  Co.  v.  Moore,  66  N.  J.  Law, 
74,  48  Atl.  525;  Lusk  v.  Throop,  189  111.  127.  59  N.  E.  529.  Where  defendant 
gave  plaintiff  directions  to  give  his  (defendant's)  subcontractors  material,  and 
charge  it  to  them,  which  was  done,  and  every  month  he  (defendant)  would 
pay  the  bill,  it  was  held  not  to  show  that  credit  was  given  the  subcontract- 
ors, and  that  the  undertaking  was  original.  Maurin  v.  Fogelberg,  37  Minn. 
23,  32  N.  W,  858,  5  Am.  St  Rep.  814.  And  see  Owen  v.  Stevens,  78  111.  462; 
Schoenfeld  v.  Brown,  78  111.  487. 

19  Welch  V.  Marvin,  36  Mich.  59;  Cahill  v.  Bigelow,  18  Pick.  (Mass.)  369; 
Norris  v.  Graham,  33  Md.  56;  Northern  Cent.  Ry.  Co.  v.  Prentiss,  11  Md.  119; 
Aldrich  V.  Jewell,  12  Vt.  125,  36  Am.  Dec.  330;  Matthews  v.  Milton,  4  Yerg. 
(Tenn.)  570,  26  Am.  Dec.  247;  Baldwin  v.  Hiers,  73  Ga.  739;  Blank  v.  Dreher, 
25  111.  331;  Langdon  v.  Richardson,  58  Iowa,  610,  12  N.  W.  622;  Bugbee  v. 
Kendricken,  130  Mass.  437;  Mead  v.  Watson,  57  Vt.  426;  Studley  v.  Barth, 
54  Mich.  6,  19  N.  W.  508;  Robertson  v.  Hunter,  29  S.  C.  9,  6  S.  E.  850;  Harris 
V.  Ftank,  81  Cal.  280,  22  Pac.  856;  Rottmann  v.  Pohlmann,  28  Mo.  App.  399; 
Clark  V.  Jones,  87  Ala.  474,  6  South.  362;  Waters  v.  Shafer,  25  Neb.  225,  41 
N.  W.  181. 

20  Goodman  v.  Chase,  1  Barn.  &  Aid.  297;   Teeters  v.  Lamborn,  43  Ohio  St. 


§  40)  PROMISE    TO   ANSWER   FOR    DEBT,    ETC.,  OF   ANOTHER.  69 

take  the  promise  out  of  the  statute,  the  original  debtor's  release  must 
be  absolute.  If  the  creditor  may  still  "Hold  him  liable  at  his  option, 
the  promise  must  be  in  writing.^ ^  Novations  fall  within  this  class  of 
agreements. 

(c)  The  promise  must  contemplate  payment  by  the  promisor  out  of 
his  own  property,  or,  at  least,  not  out  of  the  property  of  the  debtor, 
from  which,  or  from  the  proceeds  of  which,  the  promisor  is  under  a 
duty  to  pay,  or  is  authorized  to  pay ;  for  in  such  a  case  the  payment 
is,  in  effect,  by  the  debtor.  The  statute  has  no  application  to  "cases 
where  the  original  debtor  places  property  of  any  kind  in  the  hands  of 
a  third  person,  and  that  person  promises  to  pay  the  claims  of  a  par- 
ticular creditor  of  the  debtor.  The  promise,  in  such  case,  is  an  origi- 
nal promise,  and  the  property  placed  in  his  hands  is  its  consideration. 
In  this  class  of  cases  it  is  immaterial  whether  the  Hability  of  the  origi- 
nal debtor  continues  or  not."  ^^ 

(d)  A  promise  to  pay  another's  debt,  to  come  within  the  statute, 
must  be  made  to  the  creditor,  and  not  to  the  debtor.  A  promise  to 
the  debtor  himself  to  pay  his  debt  for  him  does  not  require  writing.^' 

344,  1  N.  E.  513;  Andre  v.  Bodman,  13  Md.  241,  71  Am.  Dec.  628;  Meriden 
Britannia  Co.  v.  Zingsen,  48  N.  Y.  247,  8  Am.  Rep.  549;  Runde  v.  Runde,  59 
111.  98;  Green  v.  Solomon,  80  Mich.  234,  45  N.  W.  87;  Carlisle  v.  Campbell,  76 
Ala.  247;  Palmer  v.  Witcherly,  15  Neb.  98,  17  N.  W.  364;  Eden  v.  Chaffee, 
IGO  Mass.  225,  35  N.  E.  675;  Hamlin  v.  Drummond,  91  Me.  175.  39  Atl.  551; 
Ferst  V.  Bank,  111  Ga.  229,  36  S.  E.  773;  Hanson  v.  Nelson,  82  Minn.  220,  84 
N.  W.  742. 

21  Nelson  v.  Boynton,  3  Mete.  (Mass.)  396,  37  Am.  Dee.  148;  Waggoner  v. 
Gray's  Adm'rs,  2  Hen.  &  M.  (Va.)  612;  Pfaff  v.  Cummings,  67  Mich.  143,  34 
N.  W.  281;  Gray  v.  Herman,  75  Wis.  453,  44  N.  W.  248,  6  L.  R.  A.  691;  Mm-to 
V.  McKnight,  28  111.  App.  238;  Miller  v.  Lynch,  17  Or.  61,  19  Pac.  845;  Brant 
V.  Johnson,  46  Kan.  389,  26  Pac.  735;  Riegelman  v.  Focht,  141  Pa.  380,  21  Atl. 
601,  23  Am.  St.  Rep.  293;  Greene  v.  Latcham,  2  Colo.  App.  416,  31  Pac.  233. 
The  fact  that  a  lien  against  the  original  debtor  is  released  has  been  held  im- 
material if  the  debtor  himself  remains  liable.  Nelson  v.  Boynton,  supra: 
Mallory  v.  Gillett,  21  N.  Y.  412.  See  post.  p.  71.  A  promise  to  pay  another's 
debt  merely  if  the  promisee  will  forbear  to  sue  the  debtor,  which  he  does.  Is 
within  the  statute.  Gump  v.  Halberstadt,  15  Or.  356,  15  Pac.  467  (collecting 
cases  on  this  point);  Watson  v.  Randall,  20  Wend.  (N.  Y.)  201;  White  v.  Rin- 
toul,  108  N.  Y.  222,  15  N.  E.  318.  And  see  Keadle  v.  Siddens,  5  Ind.  App.  8, 
31  N.  E.  539;  Dillaby  v.  Wilcox,  60  Conn.  71,  22  Atl.  491,  13  L.  R.  A.  643,  25 
Am.  St.  Rep.  299;   Parker  v.  Dillingham,  129  Ind.  542.  29  N.  E.  23. 

22  Wait  V.  Wait's  Ex'r,  28  Vt.  350.  And  see  Farley  v.  Cleveland,  4  Cow.  (N. 
Y.)  432,  15  Am.  Dec.  387;  Peck  v.  Goff,  18  R.  I.  94,  25  Atl.  690;  Woodruff  y. 
Scaife,  S3  Ala.  152.  3  South.  311;  Belknap  v.  Bender,  75  N.  Y.  446,  31  Am. 
Rep.  476;  Ackley  v.  Parmenter.  98  N.  Y.  425,  50  Am.  Rep.  693;  Hughes  v. 
Fisher,  10  Colo.  383,  15  Pac.  702;  Fehlinger  v.  Wood,  134  Pa.  517,  19  Atl. 
746;  Leake  v.  Ball,  116  Ind.  214,  17  N.  E.  918;  Silsby  v.  Frost,  3  Wash.  T. 
388,  17  Pac.  887;  Ledbetter  v.  McGhees,  84  Ga.  227,  10  S.  E.  727;  Mitts  r. 
McMorran,  85  Mich.  94,  48  N.  W.  288;  Keyes  v.  Allen,  65  Vt  667,  27  Atl. 
319.    But  see  Gower  v.  Stuart.  40  Mich.  747;   Frame  v.  August,  SS  111.  424. 

23  EASTWOOD  V.  KEN  YON,  11  Adol.  &  E.  438;    Windell  v.  Hudson,  102 


70  STATUTE  OF  FRAUDS.  (Ch.  4 

Illustrations  of  this  are  where  a  person  buys  land  or  goods,  and  agrees 
to  pay  the  purchase  money  to  a  creditor  of  the  seller,  or,  as  part  of 
the  consideration,  assumes  a  mortgage  or  other  indebtedness  of  the 
seller.  This  is  no  more  than  a  promise  to  pay  the  promisor's  own 
debt  in  a  particular  way.^*  Nor  is  a  promise  to  indemnify  or  save 
another  harmless  from  any  liability  which  he  may  incur  as  the  result 
of  a  transaction  into  which  he  enters  at  the  instance  of  the  promisor— 
as  in  the  case  of  a  promise  to  indemnify  the  promisee  against  loss 
from  going  bail  for  another — within  the  statute.^ "^  It  is  nothing  more 
than  a  promise  to  pay  a  prospective  debt  of  the  promisee.  There  is, 
however,  authority  to  the  contrary.^®  It  has  been  sought  in  some,  if 
not  most,  of  the  books  to  distinguish  between  contracts  within  the 
statute  and  contracts  of  indemnity  by  saying  without  qualification  that 
a  promise  of  indemnity  is  not  within  the  statute;  but  this  may  mis- 
lead. Such  a  promise  to  indemnify  the  promisee  against  any  liability 
which  he  may  incur  as  we  have  mentioned  is  not  within  the  statute, 
but  it  is  otherwise  where  the  promise  is  to  indemnify  the  promisee 
against  any  loss  he  may  sustain  by  reason  of  the  default  or  miscar- 
riage of  a  person  under  liability  to  him.^'^     A  verbal  acceptance  of  a 

Ind.  521,  2  N.  E.  303;  Alger  v.  Scoville,  1  Gray  (Mass.)  391,  395;  Harwood  v. 
Jones,  10  Gill  &  J.  (Md.)  404,  32  Am.  Dec.  180;  Mersereau  v.  Lewis,  25  Wend. 
(N.  Y.)  243;  Ware  v.  Allen,  64  Miss.  545,  1  South.  738,  60  Am.  Kep.  67;  Wood 
V.  Moriarty,  15  R.  I.  518,  9  Atl.  427;  Clark  v.  Jones,  85  Ala.  127,  4  South.  771; 
MEYER  V.  HARTMAN,  72  111.  442;    Rabbermann  v.  Wiskamp,  54  111.  179. 

24  Wilson  V.  Bevans,  58  111.  232;  Clinton  Nat.  Bank  v.  Studemann,  74  Iowa, 
104,  37  N.  W.  112;  Delp  v.  Brewing  Co.,  123  Pa.  42,  15  Atl.  871;  Bateman  v. 
Butler,  124  Ind.  223,  24  N.  E.  989;  Hooper  v.  Hooper,  32  W.  Va.  526,  9  S.  E. 
937;  Skinker  v.  Armstrong,  86  Va.  1011,  11  S.  E.  977;  Neiswanger  v.  McClel- 
lan,  45  Kan.  599,  26  Pac.  18;  Morris  v.  Gaines,  82  Tex.  255,  17  S.  W.  538; 
Tuttle  V.  Armstead,  53  Conn.  175,  22  Atl.  677;  Mulvany  v.  Gross,  1  Colo.  App. 
112,  27  Pac.  878;  Lowe  v.  Hamilton,  132  Ind.  406,  31  N.  E.  1117;  American 
Pencil  Co.  v.  Wolfe,  30  Fla.  360,  11  South.  488;  Scndder  v.  Carter,  43  111. 
App.  252;  Elkin  v.  Timlin,  151  Pa.  491,  25  Atl.  139;  First  Nat.  Bank  v.  Chal- 
mers, 144  N.  Y.  342,  39  N.  E.  331. 

2B  Anderson  v.  Spence,  72  Ind.  315,  37  Am.  Rep.  162;  Aldrich  v.  Ames,  9 
Gray  (Mass.)  76;  Thomas  v.  Cook,  8  Barn.  &  C.  728;  Beaman's  Adm'rs  v. 
Russel,  20  Vt.  205,  49  Am.  Dec.  775;  Lerch  v.  Gallop,  67  Cal.  595,  8  Pac.  322; 
Keesling  v.  Frazier,  119  Ind.  185,  21  N.  E.  552;  Smith  v.  Delaney,  64  Conn. 
264,  29  Atl.  496,  42  Am.  St.  Rep.  181;  SUTTON  v.  GREY  [1894]  1  Q.  B.  285; 
Jones  V.  Bacon,  145  N.  Y.  446,  40  N.  E.  216;  Esch  v.  White,  76  Minn.  220,  78 
N.  W.  1114;  Warren  v.  Abbett,  65  N.  J.  Law,  99,  46  Atl.  575. 

2  6  MAY  V.  WILLIAMS,  61  Miss.  125,  48  Am.  Rep.  80;  Hurt  v.  Ford,  142 
Mo.  283,  44  S.  W.  228,  41  L.  R.  A.  823.    See  Browne,  Stat.  Frauds,  §§  161.  162. 

27  NUGENT  V.  WOLFE,  111  Pa.  471,  4  Atl.  15,  56  Am.  Rep.  291;  Mallory 
V.  Gillett,  21  N.  Y.  412;  Cheesman  v.  Wiggins,  122  Ind.  352,  23  N.  E.  945; 
Easter  v.  White,  12  Ohio  St.  219;  Clements'  Appeal,  52  Conn.  464.  But  see 
Lerch  v.  Gallop,  67  Cal.  595,  8  Pac.  322.  A  promise  by  onaof  the  sureties 
on  an  official  bond  to  indemnify  a  co-surety,  who  became  sucli  at  his  request, 


^, 


r^ 


§  40)  PKOMISE   TO   ANSWER    FOR    DEBT,ETC.,    OF   ANOTHER.  71 

bill  of  exchange  or  other  order  for  the  payment  of  money  is  not  within 
the  statute.  ^^ 

(e)  When  the  leading  object  of  the  promisor  is,  not  to  become  guar- 
antor or  surety  for  the  debtor,  but  to  subserve  some  purpose  of  his  own, 
and  his  promise  is  merely  incidental,  it  is  not  within  the  statute.^*  Un- 
der this  rule  the  holder  of  a  note  or  other  security  is  bound  by  a  verbal 
'  guaranty  of  its  payment,  made  for  the  purpose  of  inducing  another  to 
purchase  it;  ^°  and  the  promise  by  a  del  credere  agent  to  his  principal 
to  guaranty  the  solvency  of  the  persons  to  whom  he  sells  goods  is 
not  within  the  statute.^ ^  Again,  if  a  creditor  has,  or  is  about  to  file, 
a  lien  on  property  to  secure  his  claim,  and  a  third  person,  whose  inter- 
ests are  or  may  be  prejudiced  thereby,  guaranties  the  debt  in  consid- 
eration of  a  release  of  the  lien  or  forbearance  to  file  it,  his  object  is 
to  remove  or  prevent  the  lien,  and  the  guaranty  is  merely  incidental, 
and  some  courts  hold  that  it  need  not  be  in  writing,^  ^  though  the 
weight  of  authority  is  probably  to  the  contrary  where  the  liability  of 
the  debtor  continues.^*     And  it  has  even  been  held  that  where  the 

'  was  held  to  be  within  the  statute.  Wolverton  v.  Davis,  85  Va.  64,  6  S.  E.  619, 
17  Am.  St  Rep.  56. 

28  Aute,  p.  63. 

20  See  Little  v.  Edwards,  69  Md.  499,  16  Atl.  134;  Davis  v.  Patrick,  141  U. 
S.  479,  12  Sup.  Ct  58,  35  L.  Ed.  826;  Mitchell  v.  Beck,  88  Mich.  342,  50  N.  W. 
305;  First  Nat.  Bank  v.  Chalmers,  120  N.  Y.  658,  24  N.  E.  848;  Ferst  v.  Bank 
- .  of  Waycross,  111  Ga.  229,  36  S.  E.  773.  An  oral  promise  by  an  attorney  to 
prosecute  a  suit  and  pay  all  the  costs,  and,  if  successful,  to  have  half  the 
amount  recovered,  otherwise  nothing,  was  held  not  within  the  statute.  Wil- 
dey  v.  Crane,  69  Mich.  17,  36  N.  W.  734.  A  conti-act  of  reinsurance  has  been 
held  not  within  the  statute.  Bartlett  v.  Insurance  Co.,  77  Iowa,  155,  41  N, 
W.  601.    But  see,  contra,  Egan  v.  Insurance  Co.,  27  La.  Anu.  368. 

80  Milks  V.  Rich,  80  IN.  Y.  269,  36  Am.  Rep.  615;  Cardell  v.  McNiel,  21  N.  T. 
338;    Darst  v.  Bates,  95  111.  493,  at  page  512.    And  see,  in  case  of  assignment 

-  and  guaranty  of  judgment.  Little  v.  Edwards,  69  Md.  499,  16  Atl.  134.  So, 
also,  where  a  person  having  property  of  his  debtor  to  sell  for  payment  of  the 
debt  guaranties  the  title  to  induce  the  promisee  to  buy  it.     Famham   v. 

-     Chapman,  61  Vt  395,  18  Atl.  152.    But  see  Dows  v.  Swett,  134  Mass.  142,  45 
Am.  Rep.  310. 

31  Coutiu-ier  v.  Hastie,  8  Exch,  40,  5  H.  L.  Cas.  673;    Sherwood  v.  Stone, 
-  14  N.  Y.  267;   Wolff  v.  Koppel,  5  Hill  (N.  Y.)  458;    Id.,  2  Denio,  368,  43  Am. 
*:;,  Dec.  751;   Swan  v.  Nesmith,  7  Pick.  (Mass.)  220,  19  Am.  Dec.  282. 

3  2  Fitzgerald  v.  Dressier,  7  C.  B.  (N.  S.)  374;    Smith  v.  Exchange  Bank,  110 

Pa.  508,  1  Atl.  760;   Wills  v.  Brown,  118  Mass.  138;   Prime  v.  Koehler,  77  N. 

Y.  91;    Dunlap  v.  Thorne,  1  Rich.  Law  (S.  C.)  213;    Shook  v.  Vanmater,  22 

,    Wis.  532;   Crawford  v.  King,  54  lud.  6;   Helt  v.  Smith,  74  Iowa,  007,  39  N.  W. 

-  81;    Rogers  v.  Hardware  Co.,  24  Neb.  653,  39  N.  W.  844;    Scott  v.  White,  71 

rill.  287;    Borchsenius  v.  Canutson,  100  111.  82;    Power  v.  Rankin,  114  111.  52, 
29  N.  E.  185;  Wooten  v.  Wilcox,  87  Ga.  474,  13  S.  E.  595;   Flagler  v.  Lipman, 
A  1  Misc.  Rep.  204,  20  N.  Y.  Supp.  878. 

3  3  Nelson  v.  Boynton,   3  Mete.   (Mass.)   396,   37  Am.   Dec.   148;    Curtis  v. 

Brown,  5  Cush.  (Mass.)  488;    Mallory  v.  Gillett,  21  N.  Y.  412;    Bunneman  v. 

.^  Wagner,  16  Or.  433,  18  Pac.  841,  8  Am.  St.  Rep.  306;    Clark  v.  Jones,  85  Ala. 


4- 


^   41. 


72  STATUTE   OP   FRAUDS.  ^Ch.  4 

owner  of  a  building,  on  which  the  contractor  has  abandoned  work, 
promises  to  pay  the  contractor's  workmen  what  is  due  them  from  the 
contractor  if  they  will  go  on  with  the  work,  the  undertaking  is  origi- 
nal ;  ^*  but  this  decision  is  a  very  doubtful  one.  The  contrary  has  re- 
peatedly been  held.*** 

SAME— AGREEMENT    IN    CONSIDERATION    OF    MARRIAGE. 


The  statute  applies  to  "any  agreeuiezLt  made  upon  consideration 
of  marriage." 


This  clause  of  the  statute  does  not  apply  to  a  promise  to  marry,  the 
consideration  for  which  is,  not  the  marriage,  but  the  promise  of  the 
other  party, ^°  but  to  promises  in  consideration  of,  or  conditional  upon, 
a  marriage  actually  taking  place,  such  as  promises  to  pay  money,  or  to 
make  a  settlement  of  property,  if  the  marriage  is  consummated.*'^     An 

127,  4  South.  771;  Stewart  v.  Jerome,  71  Mich.  201,  38  N.  W.  895,  15  Am.  St. 
Rep.  252;  Warner  t.  Willoughby,  60  Conn.  468,  22  Atl.  1014,  25  Am.  St.  Rep. 
343;    Simpson  v.  Harris,  21  Nev.  353,  31  Pac.  1009. 

84  Andre  v.  Bodman,  13  Md.  241,  71  Am.  Dec.  628  (in  this  case  the  claim 
against  the  contractor,  it  seems,  was  given  up,  so  that  there  no  longer  ex- 
isted any  primary  liability  of  a  third  person);  Crawford  v.  Edison,  45  Ohio 
St.  239,  13  N.  E.  80;  Greenough  v.  Eichholtz  (Pa.  Sup.)  15  Atl.  712;  Bu- 
chanan V.  Moran,  62  Conn.  83,  25  Atl.  396;  Craft  v.  Kendrick,  39  Fla.  90,  21 
South.  803;  Hall  v.  Alfoi-d,  105  Ky.  664,  49  S.  W.  444;  Raabe  v.  Squier,  148 
N.  Y.  81,  42  N.  E.  516;  Almond  v.  Hart,  46  App.  Div.  431,  61  N.  Y.  Supp.  849. 
And  see  Sext  v.  Geise,  80  Ga.  698,  6  S.  E.  174  (where  the  promise  was  to  pay 
for  material);  Bice  v.  Building  Co.,  96  Mich.  24,  55  N.  W.  382. 

3  5  See  Farnham  v.  Davis,  79  Me.  282,  9  Atl.  725;  Greene  v.  Latcham,  2 
Colo.  App.  416,  31  Pac.  233;  Hutton  Bros.  v.  Gordon,  2  Misc.  Rep.  267,  23  N. 
Y.  Supp.  770;  Wilhelm  v.  Voss,  118  Mich.  106,  76  N.  W.  308.  Where  a  widow, 
continuing  her  deceased  husband's  business,  promised  her  husband's  creditor 
to  pay  his  debt  if  he  would  sell  her  goods  on  credit,  the  promise  was  held 
to  be  within  the  statute.  Ruppe  v.  Peterson,  67  Mich.  437,  35  N.  W.  82.  And 
see  Derringer  v.  Moynihan  (Com.  PI.  N.  Y.)  10  N.  Y.  Supp.  540. 

«8  Clark  V.  Pendleton,  20  Conn.  495;  Short  v.  Stotts.  58  Ind.  29;  Blackburn 
V.  Mann,  85  111.  222;  Lewis  v.  Tapman,  90  Md.  294,  45  Atl.  459,  47  L.  R.  A. 
385.  "It  would  be  imputing  to  the  legislature  too  great  an  absurdity  to  sup- 
pose that  they  had  enacted  that  all  our  courtships,  to  be  valid,  must  be  in 
writing."    Withers  v.  Richardson,  5  T.  B.  Mon.  (Ky.)  94,  17  Am.  Dec.  44. 

3  7  Caton  V.  Caton,  L.  R.  1  Ch.  App.  137;  Ogden  v.  Ogden,  1  Bland  (Md.) 
284;  Crane  v.  Gough,  4  Md.  316;  Henry  v.  Henry,  27  Ohio  St.  121;  Finch  v. 
Finch,  10  Ohio  St.  507;  Deshon  v.  Wood,  148  Mass.  132,  19  N.  E.  1,  1  L.  R.  A. 
518;  Chase  v.  Fitz,  132  Mass.  359;  McAnnulty  v.  McAnnulty,  120  111.  26,  11 
N.  E.  397,  60  Am.  Rep.  552;  Richardson  v.  Richardson,  148  111.  563,  36  N. 
E.  608,  26  L.  R.  A.  305;  Flenner  v.  Flenner,  29  Ind.  564;  Cay  lor  v.  Roe, 
99  Ind.  1;  Lloyd  v.  Fulton,  91  U.  S.  479,  23  L.  Ed.  303.  A  contract  by  which 
each  party  is  to  retaiu  the  title  to  his  or  her  property,  and  dispose  of  it  as  if 
■unmaiTied,  Is  within  the  statute.  Mallory's  Adm'rs  v.  M>allory's  Adm'r, 
92  Ky.  316,  17  S.  W.  737. 


§  42)  CONTRACT  OR   SALE   OF  LANDS.-  73 

agreement  between  a  man  and  woman  that  on  their  marriage  the  sur- 
vivor shall  take  no  interest  in  the  property  of  the  other,  has  been  held 
to  be  a  contract  in  consideration  of  marriage.^ ^  On  the  other  hand, 
an  oral  contract  between  a  man  and  woman,  by  which  the  man  was  to 
provide  for  the  comfort  and  support  of  the  woman  during  life,  pay  her 
debts,  take  care  of,  manage,  and  improve  certain  land  so  as  t6  make  it 
productive,  and  to  that  end  that  the  parties  should  marry  and  live  to- 
gether on  the  land,  which  should  be  conveyed  by  the  woman  to  the 
man  in  fee  simple,  was  held  not  to  be  within  the  statute,  on  the  ground 
that  the  consideration  for  the  conveyance  of  the  land  was  the  provision 
for  the  support  and  comfort  of  the  woman,  and  not  the  marriage.^® 

The  marriage  of  the  parties  is  not  such  part  performance  as  will 
take  an  antenuptial  contract  out  of  the  operation  of  the  statute.*" 


SAME— CONTRACT  OB  SALE  OF  LANDS,  OR  ANY  INTEREST  IN  OR 

CONCERNING    THEM. 

42.    The  folloTi^ing  general  rules  may  be  mentioiied : 
^'  (a)    The  contract  must  be  for  a  substantial  interest  in  land, 
(b)    Fructus  industriales,  or  crops  and  other  products  of  land,  raised 

by  labor  and  cultivation,   are  not  an  interest  therein. 
(c>    Fructus  naturales,  or  the  natural  gromrth  and  products  of  land, 
ai-e  an  interest  in  land  if  the  oxirnership  is  to  pass  before,  but 
not  if  it  is  not  to  pass  until  after,  severance, 
(d)    A  mere  license  to  enter  on  land  is  not  an  interest  in  land,  but 
it  is  otherT(ris3  Tvith  an  easement. 

Thf,  treatment  of  this  clause  of  the  statute  belongs  more  properly 
to  a  work  ou  the  law  of  real  property,  and  we  need  only  state  the  rules 
governing  its  application  in  a  general  way.  The  terms  "lands,"  "tene- 
ments,'' and  "hereditaments"  have  a  clearly-defined  meaning  in  the  law 
of  real  property.  They  are  used  to  denote  the  subjects  of  real  prop- 
erty, as  distinguished  from  personal  property,  or  goods  and  chattels. 
It  is  often  difficult,  however,  to  determine  what  is  an  interest  in  land 
within  this  section. 

A  contract,  to  require  writing  as  being  for  an  interest  in  land,  must 
be  for  a  substantial  interest,  and  not  for  arrangements  preliminary  to 
the  acquisition  of  an  interest,  nor  for  a  remote  and  inappreciable  in- 

3  8  Carpenter  v.  Comings,  51  Hun,  638,  4  N.  Y.  Supp.  947.  See,  also,  Ennis  v. 
Ennis,  48  Hun,  11.  So,  also,  in  case  of  an  agreement  that  certain  property 
shall  go  to  the  survivor.  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  15".  And 
see  White  v.  Bigelow,  154  Mass.  593,  28  N.  E,  904;  Adams  v.  Adams.  17  Or. 
247,  20  Pac.  633. 

3»  Larsen  v.  Johnson,  78  Wis.  300,  47  N.  W.  615,  23  Am.  St.  Rep.  404. 

40  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157.  And  see  Johnstone  v. 
Mappin,  60  Law  J.  Ch.  241;  Flenuer  v.  Flenner,  29  Ind.  564;  Manning  v, 
Riley,  52  N.  J.  Eq.  39,  27  Atl.  810. 


74  STATUTE   OB^   FRAUDS.  (Ch.  4 

terest.**  An  agreement  for  a  lease  of  land  would  be  a  contract  for 
an  interest  in  land/^  but  an  agreement  to  pay  for  an  examination  of 
title  with  a  view  to  purchasing  land,  or  to  furnish  another  with  money 
with  which  to  buy  land  would  not  be  within  the  statute,*^  nor  would 

41  Wattei-s  V.  McGuigan,  72  Wis,  155,  39  N,  W.  382.  An  oral  agreement  be- 
tween adjoining  landowners,  settling  a  dispute  as  to  the  boundary  line  be- 
tween them,  has  been  held  not  within  the  statute.  Jenkins  v.  Trager  (C.  C.) 
40  Fed.  726;  Archer  v.  Helm,  69  Miss.  730,  11  South.  3;  Ferguson  v.  Crick 
(Ky.)  23  S.  W.  068;  Lecomte  v.  Toudouze,  82  Tex.  208,  17  S.  W.  1047,  27 
Am.  St  Rep.  870;  Grigsby  v.  Combs  (Ky.)  21  S.  W.  37;  Jacobs  v.  Moseley, 
91  Mo.  457,  4  S.  W.  135;  Sheets  v.  Sweeny,  136  111.  336,  26  N.  E.  648;  Atchi- 
son V.  Pease,  96  Mo.  566,  10  S.  W.  159;  Hills  v.  Ludwig,  46  Ohio  St.  373,  24 
N.  B.  596.  Tlie  contrary  has  also  been  held.  Camp  v.  Camp,  59  Vt.  667,  10 
Atl.  748.  Such  an  agreement  is  within  the  statute,  where  the  true  boundary 
is  known  or  tixed  by  a  deed,  and  the  purpose  is  to  convey  additional  land 
by  fixing  the  boundary  at  another  place.  Weeks  v.  Martin,  57  Hun,  589,  10 
N.  Y.  Supp.  656;  Jenkins  v.  Trager  (C,  C.)  40  Fed.  726;  Shaffer  v.  Hahn,  111 
N.  C.  1,  15  S.  E.  1033;  Buckner  v.  Anderson,  111  N.  C.  572,  16  S.  E.  424,. 
Where  the  agreement  is  executed  by  taking  possession.  Teass  v.  City  of  St. 
Albans,  38  W.  Va.  1,  17  S.  E.  400,  19  L.  R.  A.  802.  As  to  ratification  of  an 
agreement,  see  CAVANAUGH  v.  JACKSON,  91  Cal.  580,  27  Pac.  931;  Smith 
V.  Schiele,  93  Cal.  144,  28  Pac.  857.  It  has  been  held  that  where  two  execu- 
tion creditors  levy  on  the  same  land,  and  then  agree  that  it  shall  be  sold 
under  one  of  the  executions,  and  the  proceeds  divided,  this  is  not  a  sale,  but 
a  compromise,  and  therefore  not  within  the  statute.  Mygatt  v.  Tarbell,  78 
Wis.  351,  47  N.  W.  618.  An  agreement  by  an  heir  with  his  ancestor  to  re- 
lease his  expectations  is  within  the  statute.  Brands  v.  Ue  Witt,  44  N.  J. 
Eq.  545,  14  Atl.  894,  6  Am.  St.  Rep.  909.  So,  also,  is  an  agreement  by  a  ven- 
dee under  an  executory  contract  of  sale  to  sm-render  to  his  vendor  his  in- 
terest under  the  contract.  DOUGHERTY  v.  CATLETT,  129  111.  431,  21  N.  E. 
932.  An  agreement,  on  the  sale  of  land,  for  abatement  of  price  in  case  of  a 
deficiency,  is  not  within  the  statute.  McGee  v.  Craven,  106  N.  0.  351,  11  S.  E. 
375;  Haviland  v.  Sammis,  62  Conn.  44,  25  Atl.  394,  36  Am.  St.  Rep.  330. 
Nor  is  an  agreement  by  which  a  party  promises  to  pay  another  a  certain 
sum  per  acre  for  all  the  land  the  latter  shall  examine  and  advise  the  former 
to  buy.  Wilson  v.  Morton,  85  Cal.  598,  24  Pac.  784.  Agreement  between 
adjoining  landowners  as  to  building  of  partition  fence.  Rudisill  v.  Cross, 
54  Ark.  519,  16  S.  W.  575,  26  Am.  St.  Rep.  57.  Oral  agreement  to  arbiti-ate 
as  to  land.  Fort  v.  Allen,  110  N.  C.  183,  14  S.  E.  685.  Rent  being  an  inci- 
dent to  the  ownership  of  land,  an  assignment  of  rent  must  be  in  writing. 
King  V.  Kaiser,  3  Misc.  Rep.  523,  23  N.  Y.  Supp.  21.  Agreement  to  devise 
land.  Gould  v.  Mansfield,  103  Mass.  408,  4  Am.  Rep.  573;  Hale  v.  Hale,  90 
Va.  728,  19  S.  E.  739;  In  re  Kessler's  Estate,  87  Wis.  660,  59  N.  W.  129.  41 
Am.  St.  Rep.  74;  Grant  v.  Grant,  63  Conn.  530,  29  Atl.  15,  38  Am.  St.  Rep. 
379. 

4  2  Potter  V.  Arnold,  15  R.  I.  350,  5  Atl.  379.  Assignment  of  a  lease  the 
unexpired  term  of  which  is  more  than  a  year.  Chicago  Attachment  Co.  v. 
Davis  Sewing-Mach.  Co.  (111.  Sup.)  25  N.  E,  669,  28  N.  E.  959;  Id.,  142  111. 
171,  31  N.  E.  438,  15  L.  R.  A.  754. 

43  Horner  v.  Frazier,  65  Md.  1,  4  Atl.  133.  An  agreement  by  an  agent  to 
bu.v  land  in  his  own  name  for  the  benefit  of  his  principal  is  not  within  the 
statute.  Baker  v.  Wainwright,  36  Md.  336,  11  Am.  Rep.  495.  A  parol  parti- 
tion is  not  within  the  statute.     Meacham  v.  Meacham,  91  Teun.  532,  19  S. 


-7//  /X 


0. 


§  42)  CONTRACT   OR   SALE    OF   LANDS.  75 

an  agreement  to  transfer  shares  of  stock  in  a  railroad  company  or 
other  corporation,  which,  though  the  company  may  own  land,  do  not 
give  any  appreciable  interest  therein  to  the  individual  shareholders.** 

An  agreement  between  landlord  and  tenant  for  the  sale  or  surrender 
of  fixtures  placed  upon  the  land  by  the  tenant  is  not  a  sale  of  an  inter- 
est in  land.*'^ 

According  to  the  weight  of  authority,  agreements  for  partnership 
dealings  in  land — that  is,  agreements  under  which  the  parties  are  to 
buy  land  for  the  purpose  of  selling  it  again,  and  dividing  the  profits 
or  losses — are  not  within  the  statute.** 

Crops  and  Other  Products  of  Land. 

Probably  the  chief  question  of  interest  with  reference  to  this  sub- 
ject relates  to  the  sale  of  crops  and  other  products  of  land.  A  dis- 
tinction exists  between  what  are  called  "fructus  industriales,"  such  as 
crops  of  wheat,  corn,  and  the  like,  which  are  obtained  by  labor  and 
cultivation,  and  "fructus  naturales,"  such  as  growing  grass,  timber, 
ores  in  the  ground,  uncut  ice,  and  the  like,  produced  by  the  power  of 
nature  alone. 

W.  757;  Wolf  v.  Wolf,  158  Pa.  621,  28  Atl.  1&4.  Contra:  Fort  v.  Allen, 
110  N.  C.  183,  14  S.  E.  685.  Nor  is  an  agreement  not  to  use  land  for  a  particu- 
lar purpose.  Hall  v.  Solomon,  61  Conn.  476,  23  Atl.  876,  29  Am.  St.  Rep. 
218. 

**  Anson,  Cont.  (4tli  Ed.)  61.  But  see  Driver  v.  Broad,  4  Reports  411 ;  Id. 
[1893]  1  Q.  B.  744. 

•15  South  Baltimore  Co.  v.  Mulilbacli,  69  Md.  395,  16  Atl.  117,  1  L.  R.  A. 
507;  Frear  v.  Hardenbergli,  5  Johns.  (N.  Y.)  272,  4  Am.  Dec.  356;  Scoggiu 
V.  Slater,  22  Ala.  687;Heysham  v.  Detti-e,  89  Pa.  506.  Nor  are  they  within 
section  17.  Hallen  v.  Runder,  1  C,  M.  &  R.  266;  LEE  v.  GASKELL,  1  Q.  B.  D. 
700. 

46  McElroy  v.  Swope  (C.  C.)  47  Fed.  380;  Petrie  v.  Torrent,  88  Mich.  43,  49 
N.  W.  1076;  Howell  v.  Kelly,  149  Pa.  473,  24  Atl.  224;  Gardner  v.  Randell, 
70  Tex.  453,  7  S.  W.  781;  Van  Trotha  v.  Bamberger,  15  Colo.  1,  24  Pac.  883; 
Flower  v.  Barnekoff,  20  Or.  132,  25  Pac.  370,  11  U  R.  A.  149;  Speyer  v. 
Desjardins,  144  111.  641,  32  N.  E.  283,  36  Am.  St.  Rep.  473;  Fountain  v.  Me- 
nard, 53  Minn.  442,  55  N.  W.  601,  39  Am.  St.  Rep.  617;  BATES  v.  BAB- 
COCK,  95  Cal.  479,  30  Pac.  605,  16  L.  R.  A,  745,  29  Am.  St.  Rep.  133;  Case 
V.  Seger,  4  Wash.  492,  30  Pac.  646;  Cotiin  v.  Mcintosh,  9  Utah,  315,  34  Pac. 
247.  But  see  Young  v.  Wheeler  (C.  C.)  34  Fed.  98;  Raub  v.  Smith,  01  Mich. 
543,  28  N.  W.  678,  1  Am.  St.  Rep.  619;  Brosnan  v.  McKee,  63  Mich.  454, 
30  N.  W.  107;  McKinnon  v.  McKinnon  (C.  C.)  46  Fed.  713;  Clarke  v.  Mc- 
Auliffe,  81  Wis.  104,  51  N.  W.  S3.  An  agreement  between  A.  and  B.  to  work 
a  stone  quarry  together,  and  divide  the  protits,  if  B.  can  purchase  land,  to 
be  paid  for  by  A.,  to  whom  the  deed  is  to  be  made,  is  not  for  an  interest  in 
land.  Treat  v.  Hiles,  68  Wis.  344,  32  N.  W.  517,  60  Am.  Rep.  858.  An  agree- 
ment by  a  person  to  purcliase  land  with  his  own  money,  and  divide  with 
another,  is  within  the  statute.  Towle  v.  Wadsworth,  147  111.  80,  30  N.  E. 
602;  Robbins  v.  Kimball,  55  Ark.  414,  18  S.  W.  457,  29  Am.  St.  Rep.  45; 
Morton  v.  Nelson,  145  111.  586,  32  N.  E.  916;  Roughton  v.  Rawlings,  88  Ga. 
819,  16  S.  E.  89;    Schultz  v.  Waldons,  60  N.  J.  Eq.  71,  47  Atl.  187. 


7G  STATUTE  OF   FRAUDS.  (Ch.  4 

Fructus  industriales  are  chattels,  and  not  an  interest  in  land.*'  Fruc- 
tus  naturales,  on  the  contrary,  are  such  an  interest,  and  a  contract  for 
their  sale,  which  contemplates  the  passing  of  the  property  before  the 
severance,  is  within  the  statute;  *^  but  it  is  otherwise  if  the  title  is  not 
to  pass  until  after  they  are^severed.** 

Licenses  and  Easements. 

A  mere  license  to  enter  upon  land  and  do  a  particular  act  or  series 
of  acts — as  in  the  case  of  a  license  to  enter  upon  land  and  remove 
property  sold  to  the  licensee — is  not  an  interest  in  land,  within  the 
statute.  It  is  otherwise,  however,  where  the  right  conferred  is  to  en- 
ter upon  lands  and  erect  and  maintain  a  dam  thereon.  This  is  more 
than  a  mere  license ;  it  is  an  easement.  It  is  the  transfer  of  an  inter- 
est in  the  land.°**     A  right  of  way  is  an  interest  in  land.^^ 

47  Evans  v.  Roberts,  5  Barn.  &  C.  829;  Jones  v.  Flint,  10  Adol.  &  El.  753; 
Miller  v.  Baker,  1  Mete.  (Mass.)  27;  Wliitmarsh  v.  Walker,  Id.  313;  Whipple 
V.  Foot,  2  Johns.  (N.  Y.)  418,  3  Am.  Dec.  442;  Koss  v.  Welch,  11  Gray  (Mass.) 
2.S5;  NORTHERN  v.  STATE,  1  Ind.  113;  Graff  v.  Fitch,  58  111.  373,  11  Am. 
Rep.  85;  Davis  v.  McFarlane,  37  Cal.  G34,  99  Am.  Dec.  340;  Marshall  v.  Fer- 
guson, 23  Cal.  65;  Purner  v.  Piercy,  40  Md.  223,  17  Am.  Rep.  591.  But  see, 
contra,  Kerr  v.  Hill,  27  W.  Va.  576. 

4  8  Rodwell  v.  Phillips,  9  Mees.  &  W.  501 ;  Crosby  v.  Wadsworth,  6  East,  602 ; 
White  V.  Foster,  102  Mass.  375 ;  Howe  v.  Batchelder,  49  N.  H.  204 ;  Green  v. 
Armstrong,  1  Denio  (N.  Y.)  550;  Harrell  v.  Miller,  35  Miss.  700,  72  Am.  Dec. 
154;  Owens  v.  Lewis,  46  Ind.  489,  15  Am.  Rep.  295;  Lillie  v.  Dunbar,  62  Wis. 
198,  22  N.  W.  467;  HIRTH  V.  GRAHAM,  50  Ohio  St.  57,  33  N.  E.  90,  19  L.  R. 
A.  721,  40  Am.  St.  Rep.  641. 

There  is,  however,  much  conflict,  and  in  some  states  sales  of  growing 
trees,  to  be  presently  cut  and  removed  by  the  purchaser,  are  held  not  to 
be  within  this  section.  Bostwick  v.  Leach,  3  Day  (Conn.)  476 ;  Smith  v.  Bry- 
an, 5  Md.  141,  59  Am.  Dec.  104;  Leonard  v.  Medford,  85  Md.  6G6,  37  Atl.  305, 
37  L.  R.  A.  449;  Cain  v.  McGuire,  13  B.  Mon.  340;  cf.  Marshall  v.  Green,  1 
C.  P.  D.  35.     See  Tiffany,  Sales,  46. 

4  9  Smith  V.  Surman,  5  B.  G.  561;  Washbourn  v.  Burrows,  11  East,  362; 
Drake  v.  Wells,  11  Allen  (Mass.)  141;  Fletcher  v.  Livingston,  153  Mass.  388, 
26  N.  E.  1001;  Banton  v.  Shorey,  77  Me.  48;  Upson  v.  Holmes,  51  Conn.  500; 
Killmore  v.  Hewlett,  48  N.  Y.  569. 

6  0  See  Mumford  v.  Whitney,  15  Wend.  (N.  Y.)  380,  30  Am.  Dec.  60.  In  the 
case  cited  the  autliorities  are  collected  and  discussed  at  length.  See,  also, 
Whitmarsh  v.  Walker,  1  Mete.  (Mass.)  313;  Johnson  v.  Wilkinson,  139  Mass. 
3,  29  N.  E.  62,  52  Am.  Rep.  698;  Tayler  v.  Waters,  7  Taunt.  374;  Hayes  v. 
Fine,  91  Cal.  391,  27  Pac.  772;  Claaton  v.  Scruggs,  95  Ala.  279,  10  South. 
757.  Easement  in  portion  of  the  water  from  a  ditch.  Dorris  v,  Sullivan, 
90  Cal.  279,  27  Pac.  216.  Agreement  between  railroads  for  joint  use  of  the 
right  of  way  of  one  not  within  the  statute.  Alabama  G.  S.  R.  Co.  v.  Rail- 
road Co.,  84  Ala.  570,  3  South.  286,  5  Am.  St.  Rep.  401.  Nor  is  an  agree- 
ment between  telegraph  companies  for  the  use  by  one  of  the  other's 
poles.  Famsworth  v.  Telegraph  Co.,  53  Hun,  636,  6  N.  Y.  Supp.  735.  A  right 
to  drain  water  over  another's  land  is  said  to  be  an  interest  in  land.  Deyo 
V.  Ferris,  22  111.  App.  154,  24  111.  App.  416. 

01  Bouelli  V.  Blakemore,  66  Miss.  136,  5  South.  228,  14  Am.  St.  Rep.  550. 


§  43)  AGREEMENT    NOT    TO    BE    PERFORMED    WITHIN    YEAR.  77 

Statutes  Varying  from  the  English  Statute. 

The  statute  in  some  states  varies  from  the  English  statute.  In  Illi- 
nois, for  instance,  it  applies  to  any  contract  for  the  sale  of  lands,  etc., 
or  any  interest  in  or  concerning  them,  "for  a  longer  term  than  one 
year."  " 

SAME— AGREEMENT  NOT  TO  BE  PERFORMED  WITHIN  ONE  YEAR. 

43.    Tlie  following  rules  may  be  mentioned: 

(a)  The   agreement  must  be  impossible  of  performance  witbin  tbe 

year. 

(b)  In  some  jurisdictions  tbe  agreement  must  contemplate  nonper- 

formajice  by  botb  parties  witbin  tbe  year. 

(c)  In  a  few  jurisdictions  this  clause  of  the  statute  does  not  apply 

to  agreements  relating  to  land. 

Possibility  of  Performance. 

In  order  that  an  agreement  may  fall  within  this  clause  of  the  stat- 
ute, the  parties  must  contemplate  that  it  shall  not  be  performed  within 
a  year.  The  mere  fact  that  it  may  not  be,  or  is  not,  performed  within 
the  year,  does  not  bring  it  within  the  statute.  It  must  appear,  it  has 
been  said,  that  "it  is  to  be  performed  after  the  year."  "  Further  than 
this,  the  agreement  must  be  impossible  of  completion  within  a  year. 
If,  by  any  possibility,  it  is  capable  of  being  completed  within  a  year,  it 
is  not  within  the  statute,  though  the  parties  may  intend,  and  though 
it  is  probable,  that  it  will  extend  over  a  longer  period,  and  though  it 
does  in  fact  so  extend. 

The  oral  contracts  that  have  been  held  enforceable  under  this  rule 
may  be  classified  as  follows : 

(a)  Agreements  for  the  performance  of  an  act  on  the  happening  of 
a  contingency  which  may  possibly  happen  within  a  year, — as  in  the 
case  of  agreements  to  do  something  on  the  marriage  or  death  of  a  per- 
son, without  further  specification  as  to  time ;  or  upon  the  return  of  a 
ship,  which  may  return  within  a  year,  though  it  does  not  in  fact  re- 
turn until  a  longer  time  has  elapsed;  or  upon  the  happening  of  any 
other  event  which  may  happen  at  any  time."* 

62  Rev.  St.  111.  c.  59,  §  2. 

63  PETER  V.  COMPTON,  1  Smith.  Lead.  Cas.  335;  WARNER  v.  RAIL- 
WAY CO.,  164  U.  S.  418,  17  Sup.  Ct.  147,  41  L.  Ed.  495;  Bullock  v.  Turn- 
pike Co.,  85  Ky.  184,  3  S.  W.  129;  Worley  v.  Sipe,  111  Ind.  238,  12  N.  E.  385; 
Jones  V.  Pouch,  41  Ohio  St.  146;  Kaynor  v.  Drew,  72  Cal.  307,  13  Pac.  866; 
Sarles  v.  Sliarlow,  5  Dak.  100,  37  N.  W.  748;  Warren  Chemical  &  Mfg.  Co.  v. 
Holbrook,  118  N.  Y.  586.  23  N.  E.  90S,  16  Am.  St.  Rep.  788;  Durham  v.  Hiatt, 
127  Ind.  514,  26  N.  E.  401;  Sweet  v.  Lumber  Co.,  56  Ark.  629,  20  S.  W.  514; 
Niagara  Fire  Ins.  Co.  v.  Greene,  77  Ind.  590;  Cole  v.  Singerly,  60  Md.  348; 
MacElree  v.  Wolfersberger,  59  Kan.  105,  52  Pac.  69;  Richmond  Union  Pass. 
R.  V.  Railroad  Co.,  96  Va.  670,  32  S.  E.  787. 

64  Kent  V.  Kent,  62  N.  Y.  560,  20  Am.  Rep.  502;   Jilson  v.  Gilbert,  26  Wis. 


78  STATUTE  OF   FRAUDS.  (Ch.  4 

(b)  Agreements  for  the  continuous  performance  of  acts  until  the  hap- 
pening of  a  contingency  which  may  possibly  happen  within  a  year, — 
as  in  the  case  of  agreements  to  render  services,  or  to  support  a  person, 
or  to  pay  money  from  time  to  time,  during  a  person's  life,  or  until  a 
person's  marriage,  or  until  the  happening  of  any  other  event  which 
may  possibly  happen  within  a  year.^^  In  this  class  may  be  placed  con- 
tracts that  may  be  terminated  at  any  time  on  notice,  and  contracts  to 
perform  acts  so  long  as  the  other  party  may  need  such  performance.^^ 

(c)  Agreements  which,  from  their  nature,  and  without  mentioning 
any  contingency,  will  be  completely  performed  according  to  their  terms 
and  intention  if  a  certain  contingency  shall  happen  within  the  year,^^ 
— as  in  the  case  of  agreements  to  forbear  from  personally  doing  cer- 
tain acts  for  an  indefinite  time,  or  for  a  number  of  years,  and  which 

637,  7  Am.  Rep.  100;  Updike  v.  Ten  Broeck,  32  N.  J.  Law,  105;  Anonymous, 
1  Salk.  280;  Blake  v.  Cole,  22  Pick.  (Mass.)  97;  McPherson  v.  Cox,  96  U.  S. 
404,  24  L.  Ed.  746;  Cole  v.  Singerly,  60  Md.  348;  Thomas  v.  Armstrong,  8& 
Va.  323,  10  S.  E.  6,  5  L.  R.  A.  529;  Bartlett  v.  Mystic  River  Corp.,  151  Mass. 
433,  24  N.  E.  780;  Clark  v.  Pendleton,  20  Conn.  495.  A  promise  by  a  man  to 
marry  wlien  he  recovers  his  health, — McConahey  v.  Griffey,  82  Iowa,  564,  48 
N.  W.  983,— or  when  he  returns  from  a  voyage  from  which  he  may  or  may  not 
return  within  a  year,— Clark  v.  Pendleton,  20  Conn.  495, — is  not  within  the 
statute. 

5  5  Kent  V.  Kent,  62  N.  Y.  560,  20  Am.  Rep.  502;  Heath  v.  Heath,  31 
Wis.  223;  Carr  v.  McCarthy,  70  Mich.  258,  38  N.  W.  241;  Bell  v.  Hewitfs 
Ex'rs,  24  Ind.  280;  Harper  v.  Harper,  57  Ind.  547;  McGregor  v.  McGregor, 
L.  R,  21,  Q.  B.  Div.  424;  Dresser  v.  Dresser,  35  Barb.  (N.  Y.)  573;  Hutchin- 
son V.  Hutchinson,  46  Me.  154;  Atchison,  T,  &  S,  F.  R.  Co.  v.  English,  38 
Kan.  110,  16  Pac.  82;  East  Line  &  R.  R.  R.  Co.  v.  Scott,  71  Tex.  703,  10  S. 
W,  298,  10  Am.  St.  Rep.  804;  Stowers  v.  Hollis,  83  Ky.  544;  Dailey  v.  Cain 
(Ky.)  13  S.  W.  424.  Nor  is  an  agreement  to  work  for  a  company  "for  the 
term  of  five  years,  or  so  long  as  A.  shall  continue  to  be  agent  for  the  com- 
pany." Roberts  v.  Rockbottom  Co.,  7  Mete.  (Mass.)  46.  Nor  an  agreement 
to  employ  a  person  so  long  as  he  may  be  disabled  from  an  injury  which 
he  has  received.    East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea  (Tenn.)  397. 

5  8  First  Baptist  Church  v.  Insurance  Co.,  19  N.  Y.  305;  Roberts  v.  Rock- 
bottom  Co.,  7  Mete.  (Mass.)  46;  Walker  v.  Railroad  Co.,  26  S.  C.  80,  1  S.  E. 
366;  Blake  v.  Voight,  11  N.  Y.  Supp.  716;  Id.,  134  N.  Y.  69,  31  N.  E.  256,  30 
Am.  St.  Rep.  622;  Johnston  v.  Bowersock,  62  Kan.  148,  61  Pac.  740.  Contra: 
Dobson  V.  Collis,  1  H.  &  N.  81;  Biest  v.  Shoe  Co.,  97  Mo.  137,  70  S.  W.  lOSl. 

5T  An  agreement  by  a  railroad  company  to  maintain  cattle  guards  in  con- 
sideration of  a  right  of  way  is  not  within  the  statute,  since  it  may  cease  to 
use  the  I'ight  of  way  before  expiration  of  a  year.  Arkansas  M.  R.  Co.  v. 
V^Tiitley,  54  Ark.  199,  15  S.  W.  405,  11  L.  R.  A.  621.  A  parol  contract  of 
partnership,  without  any  fixed  time  for  continuance,  and  the  business  of 
which  may  be  completed  within  a  year,  is  not  within  the  statute.  Jordan  v. 
Miller,  75  Va.  442;  Treat  v.  Hiles,  68  Wis.  344,  32  N.  W.  517,  60  Am.  Rep. 
858.  It  is  otherwise  if  the  partnership  is  to  be  continued  beyond  a  year. 
Wahl  V.  Bamum,  116  N.  Y.  87,  22  N.  E.  280.  5  L.  R.  A.  623.  And  see,  on  the 
rule  stated  in  the  text,  Frazer  v.  Gates.  118  111.  99,  1  N,  E.  S17;  Dailey  v. 
Cain  (Ky.)  13  S.  W.  424;  Great  Western  Turnpike  Co.  v.  Shafer,  57  App. 
Div.  331,  68  N.  Y.  Supp.  8. 


§  43)    AGREEMENT  NOT  TO  BE  PERFORMED  WITHIN  TEAR.      79 

would  be  fully  performed  if  the  promisor  should  die  within  the  year;  ^^ 
or  of  agreements  to  educate  or  support  a  child  until  a  certain  age,  at 
which  he  will  not  arrive  for  several  years,  or  for  an  indefinite  time, 
and  which  would  be  completely  performed  if  the  child  should  die  with- 
in the  year.=*®  The  agreement,  to  come  within  this  class,  must  be  such 
that  it  will  be  fully  "performed"  on  the  happening  of  the  contingency, 
and  not  merely  terminated.  If  it  cannot  be  fully  performed  within 
the  year,  the  fact  that  it  may  be  terminated,  or  that  further  perform- 
ance may  be  excused  or  rendered  impossible,  is  not  sufficient  to  take 
it  out  of  the  statute.**** 

(d)  Agreements  of  which  performance  may  be  required  within  a 

68  Under  this  rule  it  has  been  repeatedly  held  that  an  agreement  not  to 
carry  on  a  certain  business  at  a  particular  place  was  not  within  the  statute, 
"because,  being  only  a  personal  engagement  to  forbear  doing  certain  acts, 
not  stipulating  for  anything  beyond  the  promisor's  life,  and  imposing  no  du- 
ties upon  his  personal  representatives,  it  would  be  fully  performed  if  he  died 
Avithin  the  year."  DOYLE  v.  DIXON,  97  Mass.  208,  93  Am.  Dec.  80;  Lyon 
V.  King,  11  Mete.  (Mass.)  411,  45  Am.  Dec.  219;  Worthy  v.  Jones,  11  Gray 
(Mass.)  168,  71  Am.  Dec.  690;  Hill  v.  Jamieson,  16  Ind.  125,  79  Am.  Dec. 
414;  Richardson  v.  Pierce,  7  R.  I.  330.  And  it  is  immaterial  in  such  cases 
tiiat  the  agreement  specifies  that  the  promisor  is  to  forbear  for  a  certain 
number  of  years.    DOYLE  v.  DIXON,  supra. 

69  PETERS  V.  WESTBOROUGH,  19  Pick.  (Mass.)  364,  31  Am.  Dec.  142 ; 
Ellicott  V.  Turner,  4  Md.  476;  Wooldridge  v.  Stern  (C.  C.)  42  Fed.  311,  9  L. 
R.  A.  129;  Taylor  v.  Deseve,  81  Tex.  246,  16  S.  W.  1008.  See,  also,  Pennsylva- 
nia Co.  V.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am.  St.  Rep.  289;  Camig  v. 
Carr,  107  Mass.  544,  46  N.  E.  117,  35  L.  R.  A.  512,  57  Am.  St.  Rep.  488;  Yel- 
low Poplar  Lumber  Co.  v.  Rule,  106  Ky.  455,  50  S.  W.  685;  Sax  v.  Railway 
Co.,  125  Mich.  252.  84  N.  W.  314,  84  Am.  St  Rep.  572;  Martin  v.  Batchelder, 
09  N.  H.  300,  41  Atl.  83  [to  keep  house  for  year]. 

60  DOYLE  V.  DIXON,  supra.  For  this  reason  it  has  been  held  that  an 
agreement  to  employ  a  boy  for  five  years,  and  to  pay  his  father  certain 
sums  at  stated  periods  during  that  time,  was  within  the  statute;  for  though, 
by  the  death  of  the  boy,  the  services  which  were  the  consideration  of  the 
promise  would  cease,  and  the  promise  therefore  be  determined,  it  would  not 
be  completely  performed.  Hill  v.  Hooper,  1  Gray  (Mass.)  131.  And  see 
Washington,  A.  &  G.  Steam  Packet  Co.  v.  Sickles,  5  Wall.  580,  18  L.  Ed.  550 
(Cf.  WARNER  V.  RAILWAY  CO.,  164  U.  S.  418,  17  Sup.  Ct.  147,  41  L.  Ed.  495, 
criticising  this  case).  And  so,  according  to  the  weight  of  authority,  an 
agreement  for  personal  services  for  a  period  of  more  than  one  year  Is 
within  the  statute,  for,  on  the  death  of  either  party,  it  would  be  terminated, 
and  not  fully  performed.  WILLIAMS  v.  BEMIS,  108  Mass.  91,  11  Am. 
Rep.  318;  Lee's  Adm'r  v.  Hill,  87  Va.  497,  12  S.  E.  1052,  24  Am.  St.  Rep.  666; 
DAY  V.  RAILROAD  CO.,  51  N.  Y.  583,  590;  Haynes  v.  Mason,  30  111.  App. 
85;  William  Butcher  Steel  Works  v.  Atkinson,  68  111.  421,  18  Am.  Rep.  500. 
In  such  cases,  where  the  employs  is  discharged  or  quits  the  employment,  after 
part  performance,  he  may  recover  for  what  he  has  done,  not  on  the  con- 
tract, but  on  an  implied  assumpsit.  Cases  cited  supra;  Baker  v.  Lauterbach, 
08  Md.  64,  11  Atl.  703.  See,  also,  post,  p.  95.  If  the  term  of  employment  is 
indefinite,  the  conti-act  is  not  within  the  statute.  See,  also,  Dobson  v.  Collis, 
1  Hurl.  &  N.  81. 


BO  STATUTE  OP   FRAUDS.  (Ch.  4 

year  if  either  party  so  chooses,  though  neither  intends  to  require  per- 
formance, and  neither  in  fact  requires  it,  until  after  expiration  of  the 
year.^^ 

Part  Performance  zvithin  a  Year. 

Another  rule,  which  is  established  in  England  and  in  most  of  our 
states,  is  that  an  agreement  does  not  fall  within  the  statute  if  that 
which  one  of  the  parties  is  to  do  is  all  to  be  performed  within  a  year ; 
in  other  words,  the  agreement  must  contemplate  nonperformance  by 
both  parties  within  the  year.^^  A  part  performance  by  one  of  the 
parties,  however,  will  not  talce  the  agreement  out  of  the  statute.®^ 

Some  of  the  states,  however,  have  refused  to  recognize  this  rule, 
and  hold  that,  even  though  all  that  is  to  be  done  by  one  of  the  parties 
is  to  be  fully  done  within  a  year,  the  agreement  is  nevertheless  within 
the  statute,  if  the  other  party's  promise  is  not  to  be  performed  within 
the  year;"^  and  in  these  states  no  recovery  can  be  had  on  the  contract 
by  the  party  who  has  performed  his  part,  though  he  may  sue  on  the 
promise  implied  on  the  part  of  the  other  party  :rom  his  acceptance  of 
the  benefits  of  such  performance.®'* 

It  is  held  in  Illinois  that  an  agreement  which  is  to  be  fully  performed 
within  the  year,  except  for  the  mere  payment  of  money,  is  not  within 

«i  Haussman  v.  Burnham,  59  Conn.  117,  22  Atl.  1065,  21  Am.  St.  Rep.  74; 
Seddon  v.  Rosenbaum,  85  Va.  928,  9  S.  E.  326,  3  L.  R.  A.  337;  Walker  v. 
Jolinson,  96  U.  S.  424,  24  L.  Ed.  834;  Connolly  v.  Giddings,  24  Neb.  131,  37 
N.  W.  939.  A  contract  intended  to  be  performed  within  a  year  Is  not  within 
the  statute,  though  before  the  year  expires  it  is  extended  six  months.  Ward 
V.  Matthews,  73  Cal.  13,  14  Pac.  604;  Donovan  v.  Richmond,  61  Mich.  467,  28 
N.  W.  516.  A  written  lease  for  more  than  a  year,  but  with  less  than  a  year 
to  run,  may  be  modified  by  parol.    Doherty  v.  Doe,  18  Colo.  456,  33  Pac.  165. 

6  2  Donellan  v.  Read,  3  Barn.  &  Adol.  899;  Horner  v.  Frazier,  65  Md.  1,  4 
Atl.  133;  Blanding  v.  Sargent,  33  N.  H.  239,  66  Am.  Dec.  720;  Winters  v. 
Cherry,  78  Mo.  344;  Smalley  v.  Greene,  52  Iowa,  241,  3  N.  W.  78,  35  Am.  Rep. 
267;  Dm-fee  v.  O'Brien,  16  R.  I.  213,  14  Atl.  857;  Dant  v.  Head,  90  Ky.  255,  13 
S.  W.  1073,  29  Am.  St.  Rep.  369;  Berry  y.  Doremus,  30  N.  J.  Law,  399; 
Piper  V.  Fosher,  121  Ind.  407,  23  N.  E.  269;  Grace  v.  Lynch,  80  Wis.  166,  49 
N.  W.  751;  Curtis  v.  Sage,  35  111.  22;  Langan  v.  Iverson,  78  Minn.  299,  80 
N.  W.  1051. 

63  See  Osborne  v.  Kimball,  41  Kan.  187,  21  Pac.  163;  Shumate  v.  Far- 
low,  125  Ind.  359,  25  N.  E.  432;  Baker  v.  Codding,  18  N.  Y.  Supp.  159;  Hart- 
well  V.  Young,  67  Hun,  472,  22  N.  Y.  Supp.  486.  In  Wisconsin,  part  payment 
at  or  before  the  time  of  the  contract  will  take  it  out  of  the  statute.  Washburn 
V.  Dosch,  68  Wis.  436,  32  N.  W.  551,  60  Am.  Rep.  873. 

6  4  Whipple  V.  Parker,  29  Mich.  369;  Marcy  v.  Marcy,  9  Allen  (Mass.)  8; 
Frary  v.  Sterling,  9d  Mass.  401;  Pierce  v.  Paine's  Estate,  28  Vt.  34;  Sheehy 
V.  Adarene,  41  Vt.  541,  98  Am.  Dec.  623;  Lane  v.  Shackford,  5  N.  H.  130; 
Montague  v.  Garnett,  3  Bush  (Ky.)  297;  Broadwell  v.  Getman,  2  Denio  (N. 
Y.)  87;  McElroy  v.  Ludlum,  32  N.  J.  Eq.  828;  Jackson  Iron  Co.  v.  Concen- 
trating Co.,  65  Fed.  298,  12  C.  C.  A.  636. 

6  5  Whipple  V.  Parker,  29  Mich.  369.    See,  also,  post,  p.  95,  note  143;   ante, 

p.  15. 


§  43)  AGREEMENT    NOT   TO    BE    PERFORMED    WITHIN    YEAR.  81 

the  statute ;  the  party  to  whom  the  money  is  payable  having  performed 
on  his  part."® 

Particular  Contracts. 

According  to  the  weight  of  authority,  this  clause  of  the  statute  ap- 
plies to  promises  to  marry  which  are,  by  their  terms,  to  be  performed 
after  the  expiration  of  a  year."^ 

It  has,  however,  been  held  in  England,  and  in  some  of  our  states, 
that  it  does  not  apply  to  contracts  relating  to  land.®^  Mr.  Browne, 
in  his  work  on  the  Statute  of  Frauds,  takes  the  contrary  view,  and 
says  that  "it  includes  all  those  contracts  which  are  of  such  duration, 
whatever  be  their  subject-matter."  "^  We  have  been  unable  to  find 
any  case  in  which  the  point  seems  to  have  been  directly  raised  and  de- 
cided in  accordance  with  Mr.  Browne's  statement,  but  there  are  many 
cases  which  assume  that  the  statute  applies  to  agreements  relating  to 
land.  For  instance,  some  courts  hold  that  a  parol  lease  for  a  year,  to 
commence  on  a  future  day,  is  within  this  clause  of  the  statute. '^^  In 
some  of  the  states  the  statute  in  regard  to  contracts  relating  to  land 
excepts  from  its  operation  "leases  for  a  term  not  exceeding  one  year," 
and  "contracts  for  the  leasing  for  a  period  not  longer  than  one  year," 
and  in  some  states  it  is  held  that  such  a  statute  does  not  apply  to 
agreements  for  a  lease  for  a  year  to  commence  in  the  future.''^  A  con- 
tract for  services  for  one  year,  to  commence  at  a  future  day,  is  within 
the  statute,^  ^  even  though  it  is  to  commence  on  the  day  after  the  con- 


««  Curtis  V.  Sage,  35  111.  22;   Worden  v.  Sharp,  56  111.  104. 

67  DERBY  V.  PHELPS,  2  N.  H.  515;  Clark  v.  Pendleton,  20  Conn,  495; 
Lawrence  v.  Cooke,  56  Me.  187,  96  Am.  Dec.  443;  Nichols  v.  Weaver,  7  Kan. 
373;   Lewis  v.  Tappan,  90  Md.  294,  45  Atl.  469,  47  L.  R.  A.  385. 

68  HOLLIS  V.  EDWARDS,  1  Vera.  159;  Fall  v.  Hazelregg,  45  Ind.  576,  15 
Am.  Rep.  278;  Sobey  v.  Brisbee,  20  Iowa,  105;  Young  v.  Dake,  5  N.  Y.  463, 
55  Am.  Dec.  356;  Wilson  v.  Martin,  1  Denio  (N.  Y.)  602;  Railsback  v.  Walke, 
81  Ind.  409. 

6  9  Browne,  St.  Frauds,  §  272. 

70  Delano  v.  Montague,  4  Cush.  (Mass.)  42;  Wheeler  v.  Frankenthal,  78  111. 
124;  Comstock  v.  Ward,  22  111.  248;  Olt  v.  Lohnas,  19  111.  576;  Roberts  v. 
Tennell,  3  T.  B.  Mon.  (Ky.)  247;  Wilson  v.  Martin,  1  Denio  (N.  Y.)  602;  At- 
wood  V.  Norton,  31  Ga.  507;  Strehl  v.  D'Evers,  66  111.  77;  Jellett  v.  Rhode,  43 
Minn.  166,  45  N.  W.  13,  7  L.  K.  A.  671;  White  v.  Holland,  17  Or.  3,  3  Pac. 
573;  Beiler  v.  Devall,  40  Mo.  App.  251;  White  v.  Levy,  93  Ala.  484,  9  South. 
164;    Cook  v.  Redman,  45  Mo.  App.  397. 

71  Whiting  V.  Ohlert,  52  Mich.  402,  18  N.  W.  219,  50  Am.  Rep.  265;  Young 
V.  Dake,  5  N.  Y.  463,  55  Am.  Dec.  356;  McCroy  v.  Torey,  66  Miss.  233,  5 
South.  392,  2  L.  R.  A.  847;  Goldberg  v.  Lavinski,  3  Misc.  Rep.  607,  22i  N« 
Y.  Supp.  552.    Contra,  Greenwood  v.  Strother,  91  Ky.  482,  16  S.  W.  138. 

7  2  To-misend  v.  Minford,  48  Hun,  617,  1  N.  Y.  Supp.  565;  Lee's  Adm'r  v. 
Hill,  87  Va.  497,  12  S.  E.  1052,  24  Am.  St.  Rep.  666;  Baker  v.  Codding,  18  N.  Y. 
Supp.  159. 

Clark  Cont.  (2d  Ed.)— 6 


-      f-  .L 


82  STATUTE  OF  FRAUDS.  (Ch.  4 

tract  is  made;"  but  it  is  otherwise  if  it  is  to  commence  on  the  day 
the  contract  is  entered  into.^* 


SAME— FORM  REQUIRED. 

44.  CONTENTS  OF  WRITING.    The  writing  must  showt 

(a)  The  names   or   descriptions   of   the  parties. 

(b)  The  terms   and   subject-matter   of   the   agreement. 

(c)  The  consideration  (in  most  jurisdictions). 

45.  SEPARATE   PAPERS.    The   writing   may   be   on   separate   papers, 

provided  they  are  all  signed  by  the  party  to  be  charged  or  his 
agent,  and  that  such  as  are  not  so  signed  are  attached  to  or 
referred  to  in  a  signed  paper. 

46.  BY    TVHOM    SIGNED.    In    most   jurisdictions    only   the    signature 

of  the  party  to  be  charged  is  required,  but  in  some  jurisdic- 
tions contracts  consisting  of  mutual  promises  must  be  signed 
by  both  parties. 

47.  HOAV   SIGNED.    The   signature  may  be   by  mark   or  initial,  and, 

unless  the  statute  requires  the  name  to  be  "subscribed,"  may 
be  printed,  and  may  be  in  any  part  of  the  Trritiug. 

48.  AGENT   TO    SIGN.    Where   the   signature   is   by   agent,   the   agent 

must  be  a  third  person;  but  a  person  'who  acts  as  agent  of  one 
person  in  making  the  contract  may  act  as  agent  of  both  in 
making  the  memorandum. 

49.  DELIVERY.    The  writing  need  not  be  delivered,  except  it  be  in 

form  of  a  deed  of  land. 

Form  Merely  Evidentiary. 

As  we  shall  presently  show,  the  form  required  by  this  section  of  the 
statute  does  not  go  to  the  existence  of  the  contract,  but  is  evidentiary 
only.  It  is  not,  as  in  the  case  of  a  deed,  an  integral  part  of  the  con- 
tract itself.  The  contract  exists,  though  it  may  not  be  clothed  with 
the  necessary  form;  and  the  effect  of  noncompliance  with  the  provi- 
sions of  the  statute  is  simply  that  no  action  can  be  brought  until  the 
omission  is  made  good,  for  the  contract  cannot  be  proved. 

For  this  reason  the  memorandum  or  note  may  be  made  at  any  time 
between  the  formation  of  the  contract  and  the  commencement  of  an 
action  thereon."*     The  writing  need  not  be  intended  as  a  formal  con- 

T3  BILLINGTON  v.  CAHILL,  51  Hun,  132,  4  N.  Y.  Supp.  660. 

7  4  Cox  T.  Brewing  Co.,  53  Hun,  034,  6  N.  Y.  Supp.  S41;  Aiken  v.  Nogle,  47 
Kan.  96,  27  Pac.  825. 

7  5  LERNED  v.  WANNEMACHER,  9  Allen  (Mass.)  412;  Gale  v.  Nixon,  6 
Cow.  (N.  Y.)  445;  Slieeby  v.  Fulton,  38  Neb.  G91,  57  N.  W.  395,  41  Am.  St. 
Rep.  767.  But  not  after  the  action  is  commenced.  Bill  v.  Bament,  9  Mees. 
&  W.  36;    Lucas  v.  Dixon,  22  Q.  B.  Div.  357;    BIRD  v.  MUNROE,  66  Me. 


§§  44-49)  FORM   REQUIRED.  83 

tract.''"  All  that  is  required  is  written  evidence  of  the  agreement,  and 
therefore  the  memorandum  may  consist  of  letters  written  by  the  party 
to  be  charged  to  his  own  agent,  or  to  other  third  persons,'^  The 
memorandum  may  even  consist  of  entries  made  by  the  party  to  be 
charged  on  his  or  his  agent's  books ;^^  and  entries  in  the  records  of  a 
corporation  may  prove  a  contract  by  it.'®  So,  also,  resolutions  of  a 
city  council  may  be  a  sufficient  memorandum  of  a  contract  by  it  on 
behalf  of  the  city.*"  A  telegram  may  be  a  sufficient  memorandum  to 
satisfy  the  statute  and  charge  the  party  by  whom  it  is  sent.*^  Even 
recitals  in  a  will  have  been  held  sufficient  evidence  of  a  contract  by  the 
testator  to  answer  for  the  debts  of  his  son.*^ 

A  letter  repudiating  a  verbal  contract  previously  made  by  the  writer 
may  be  sufficient.^*  Some  of  the  courts  seem  to  hold  that  the  admis- 
sion of  a  verbal  contract  in  the  pleadings  in  an  action  is  a  sufficient 
memorandum,  but  the  decisions  are  no  doubt  based  on  the  fact  that 
the  statute,  not  having  been  pleaded,  is  waived.®*  However  this  may 
be,  the  contrary  is  the  rule.®^ 

337,  22  Am.  Rep.  571.  But  see  post,  p.  83,  note  84.  It  has  been  held  In 
Illinois  that  a  verbal  agreement  in  consideration  of  marriage  is  not  taken 
out  of  the  stiitute  by  being  reduced  to  writing  after  marriage.  McAnnultj 
V.  McAnnulty,  120  111.  26,  11  N.  E.  397,  60  Am.  Rep.  552. 

7  6  Atwood  V.  Cobb,  16  Pick.  (Mass.)  230,  26  Am.  Dec.  657. 

77  GIBSON  V.  HOLLAND,  L.  R.  1  C.  P.  1;  Peabody  v.  Speyers,  56  N.  Y. 
230;  Hollis  v.  Burgess,  37  Kan.  487,  15  Pac.  536;  Lee  v.  Cherry,  85  Tenn. 
707,  4  S.  W.  835,  4  Am.  St  Rep.  800;  Cunningham  v.  Williams,  43  Mo.  Appu 
629;  Spangler  v.  Danforth,  65  111.  152;  Moss  v.  Atkinson,  44  Gal.  3;  North 
Platte  M.  &  E.  Co.  v.  Price,  4  Wyo.  293,  33  Pac.  664. 

7  8  Johnson  v.  Dodgson,  2  Mees.  &  W.  653;  CLASON  v.  BAILEY,  14  Johns. 
(N.  Y.)  484;   Coddington  v.  Goddard,  16  Gray  (Mass.)  436. 

7  8  Tufts  V.  Mining  Co.,  14  Allen  (Mass.)  407;  McManus  v.  City  of  Boston, 
171  Mass.  152,  50  N.  E.  607  (record  of  board  of  street  commissioners);  Lam- 
kin  V.  Manufactui-ing  Co.,  72  Conn.  57,  47  Atl.  593,  44  L.  R.  A.  786. 

80  Marden  v.  Champlin,  17  R.  I.  423,  22  Atl.  938;  Argus  Co.  v  City  of 
Albany,  55  N.  Y.  495,  14  Am.  Rep.  296;  Greenville  v.  Waterworks  Co.,  125 
Ala.  625,  27  South.  764.  But  see  Wilhelm  v.  Fagan,  90  Mich.  6,  50  N,  W. 
1072. 

81  TREVOR  V.  WOOD,  36  N.  Y.  307,  93  Am.  Dec.  511;  Marschall  v.  Vine- 
yard  Co.,  1  Misc.  Rep.  511,  21  N.  Y.  Supp.  468;  McElroy  v.  Buck,  35  Mich. 
434;  Little  v.  Dougherty,  11  Colo.  103,  17  Pac.  292;  Everman  v.  Herndon 
(Miss.)  11  South.  652;   Whaley  v.  Hinchmau,  22  Mo.  App.  483. 

82  In  re  Hoyle    [1893]  1  Ch.  84. 

83  Louisville  Asphalt  Varnish  Co.  v.  Lorick,  20  S.  C.  533,  8  S.  E.  8,  2  L. 
R.  A.  212. 

8  4  Gregg  V.  Garrett,  13  Mont.  10,  31  Pac.  721;  Lauer  v.  Mercantile  Inst.,  8 
Utah,  305,  31  Pac.  397.    See  ante,  p.  82,  note  75 ;  post,  p.  90,  notes  146,  147. 

8B  Taylor  v.  Allen,  40  Minn.  433,  42  N.  W.  292;  Holler  v.  Richards,  102 
N.  C.  545,  9  S.  E.  400;  Barrett  v.  McAllister,  33  W.  Va.  738,  11  S.  E.  220;. 
Browning  v.  Berry,  107  N.  C.  231,  12  S.  E.  195,  10  L.  R.  A.  726. 


84  STATUTE   OF   FRAUDS.  (Cll.  4 

Showing  as  to  Agreement. 

The  memorandum  must  show  agreement  on  the  part  of  the  party 
sought  to  be  charged ;  that  is,  it  must  show  a  conckided  contract  in 
so  far  as  he  is  concerned.^"  In  most  jurisdictions,  where  a  written 
proposal  has  been  made  by  the  party  sought  to  be  charged,  an  accept- 
ance by  the  other  party  may  be  established  by  parol  evidence.^^ 

Shozving  as  to  the  Parties. 

The  memorandum  of  the  contract  must  show  who  are  the  parties  to 
it ;  not  only  who  is  the  promisor,  but  who  is  the  promisee  as  well. 
Thus,  where  a  person  promised  that  he  would  answer  for  the  debt 
of  a  third  person,  and  signed  a  memorandum  to  that  effect,  but  the 
memorandum  did  not  show  the  name  of  the  promisee,  it  was  held 
insufficient.  "No  document,"  it  was  said,  "can  be  an  agreement  or 
memorandum  of  one,  which  does  not  show  on  its  face  who  the  par- 
ties making  the  agreement  are."  ®® 

A  party  need  not  be  named,  if  he  is  sufficiently  described;  and  the 
description  will  let  in  parol  evidence  to  show  his  identity. ^^  Where 
A.  in  his  own  name  enters  into  a  contract  as  the  agent  of  B.,  the 
other  party  to  the  contract  may  show  by  parol  evidence  that  he  really 

8  6  Coe  V.  Tough,  116  N.  Y.  273,  22  N.  E.  550. 

87  Reuss  V.  Picksley,  L.  R.  1  Exch.  342;  Farwell  v.  Lowtlier,  18  111.  252; 
Gradle  v.  Warner,  140  111.  123,  29  N.  K  1118;  Elirmanntraut  v.  Robinson,  52 
Minn,  333,  54  N.  W.  188;  Himrod  Fiu-nace  Co.  v.  Railroad  Co.,  22  Ohio  St. 
451. 

88  Williams  v.  Lake,  2  El.  &  El.  349.  And  see  McConnell  v.  Brillhart,  17 
111.  354,  65  Am.  Dec.  661;  McElroy  v.  Seery,  61  Md.  389,  48  Am.  Rep.  110; 
Sherburne  v.  Shaw,  1  N.  H.  157,  8  Am.  Dec.  47;  Grafton  v.  Cummings,  99 
U.  S.  100,  25  L.  Ed.  366;  McGovem  v.  Hern,  153  Mass.  308,  26  N.  E.  861,  10 
L.  R.  A.  815,  25  Am.  St.  Rep.  632;  Lewis  v.  Wood,  153  Mass.  321,  26  N.  B. 
862,  11  L.  R.  A.  143;  Coombs  v.  Wilkes  [18911  3  Ch.  77;  Watt  v.  Cranbeny 
Co.,  63  Iowa,  730,  18  N.  W.  898.  A  memorandum  of  a  sale  of  goods,  which 
does  not  clearly  show  which  party  is  vendor  and  which  vendee,  is  not  suffi- 
cient. Frank  v.  Eltringham,  65  Miss.  281,  3  South.  655;  Bailey  v.  Ogden,  3 
Johns.  (N.  Y.)  399,  3  Am.  Dec.  509,  But  see  Newell  v.  Radford,  L.  R.  3  C.  P. 
52;  SALMON  FALLS  MFG.  CO.  v,  GODDARD,  14  How,  (U.  S,)  446,  14  L. 
Ed.  493;  Thornton  v.  Kelly,  11  R.  I.  498.  An  auctioneer's  memorandum  of  a 
sale  of  land  must  show  who  the  vendor  is.  O'Sullivan  v.  Overton,  56  Conn. 
102,  14  Atl.  300;  Mentz  v.  New  witter,  122  N.  Y,  491,  25  N.  E  1044,  11  L,  R.  A. 
97,  19  Am.  St.  Rep,  514, 

89  Sale  V.  Lambert,  18  Eq.  1;  Fessenden  v,  Mussey,  11  Cush.  (Mass.)  127; 
Lerned  v,  Johns,  9  Allen  (Mass.)  419;  Catling  v.  King,  5  Ch.  Div.  660;  Thorn- 
ton V.  Kelly,  11  R.  I.  498;  Violett  v.  Powell's  Adm'r,  10  B,  Mon,  (Ky.)  347, 
52  Am.  Dec.  548;  Dykors  v.  Townsend,  24  N.  Y.  57;  Jones  v.  Dow,  142  Mass, 
130,  7  N,  E.  839.  Where  a  defendant  had  directed  his  factor  to  sell  goods, 
and  to  use  a  fictitious  name  to  i-epresent  him  as  seller,  and  the  fictitious  name 
was  inserted  in  the  factor's  memorandum,  parol  evidence  was  held  admissi- 
ble to  show  that  the  name  represented  defendant.  Bibb  v.  Allen,  149  U.  S, 
481,  13  Sup.  Ct.  950,  37  L.  Ed.  819.  But  see  Minard  v.  Mead,  7  Wend.  (N.  Y.) 
68;  Newcomb  v.  Clark,  1  Denio  (N.  Y.)  226. 


§§  44-49)  FORM   REQUIRED.        .  85 

contracted  with  B.,  who  has  been  described  in  the  memorandum  in  the 
character  of  A.»° 

Showing  as  to  Terms. 

The  memorandum  must  show  all  the  terms  of  the  agreement. 
Where  a  contract  does  not  fall  within  the  statute,  the  parties  may, 
at  their  option,  put  their  agreement  in  writing,  or  may  contract 
orally,  or  put  some  of  the  terms  in  writing,  and  arrange  others  oral- 
ly. In  the  latter  case,  although  that  which  is  written  cannot  be 
varied  by  parol  evidence,  yet  the  terms  arranged  orally  may  be  proved 
by  parol,  in  which  case  they  supplement  the  writing,  and  the  whole 
constitutes  one  entire  contract.  Where,  however,  a  contract  falls 
within  the  statute,  all  its  terms  must  be  in  writing."^  Parol  evidence 
of  terms  not  appearing  in  the  writing  would  invalidate  the  contract 
by  showing  that  it  was  different  from  what  appears  in  the  memoran- 
dum. 

It  is  said  in  a  Massachusetts  case  that :.  "The  contract  or  memo- 
randum must  express  the  substance  of  the  contract  with  reasonable 
certainty,  either  by  its  own  terms  or  by  reference  to  some  other 
deed,  record,  or  other  matter  from  which  it  can  be  ascertained  with 
like  reasonable  certainty.     The  statute  is  intended  as  a  shield.     No 

90  Trueman  v.  Loder,  11  Adol.  &  El.  589;  Dykers  v.  Townsend,  24  N.  Y. 
57;  Sanborn  v.  Flagler,  9  Allen  (Mass.)  477;  Hargrove  v.  Adcock,  111  N.  C. 
IGG,  16  S.  E.  16;  McConnell  v.  Brillliart,  17  111.  354,  65  Am.  Dec.  661;  Violett 
V.  Powell's  Adm'r,  10  B.  Mon.  (Ky.)  347,  52  Am.  Dec.  548;  Hypes  v.  Griffin, 
89  111.  134,  31  Am.  Rep.  71;  Tewksbury  v.  Howard,  138  Ind.  103,  37  N.  E. 
355.  The  agent,  however,  so  contracting  cannot  show  by  parol  that  he  did 
not  intend  to  bind  himself.  Higgins  v.  Senior,  8  Mees.  &  W.  834;  Waring  v. 
Mason,  IS  Wend.  (N.  Y.)  425. 

91  May  V.  Ward,  134  Mass.  127;  Drake  v.  Seaman,  97  N.  Y.  230;  Messmore 
V.  Cimningham,  78  Mich.  623,  44  N.  W.  145;  Lester  v.  Heidt,  86  Ga.  226,  12 
S.  E.  214,  10  L.  R.  A.  108;  Ringer  v.  Holtzclaw,  112  Mo.  519,  20  S.  W.  800; 
Fry  V.  Piatt,  32  Kan.  62,  3  Pac.  781;  Willy  v.  Robert,  27  Mo.  3SS;  O'DON- 
NELL  v.  LEEMAN,  43  Me.  158,  69  Am.  Dec.  54;  Kriete  v.  Myer,  61  Md. 
558.  A  memorandum  of  a  conti-act  to  sell  land,  which  does  not  mention  the 
purchase  price  nor  the  times  of  payment,  is  insufScient.  Webster  v.  Brown, 
67  Mich.  328,  34  N.  W.  676;  Gault  v.  Stormount,  51  Mich.  636,  17  N.  W.  214; 
Grafton  v.  Cummings,  99  U.  S.  100,  25  L.  Ed.  356.  But  see  Ellis  v.  Bray,  79 
Mo.  227.  So,  also,  with  a  memorandum  of  a  sale  of  goods  omitting  terms  of 
payment.  Elliot  v.  Barrett,  144  Mass.  256,  10  N.  E.  820.  A  memorandum  set- 
ting out  the  terms  of  payment  under  a  contract  of  sale  as  "one-third  cash,  and 
notes  to  be  executed  for  the  balance,"  is  not  sufhcient,  as  there  is  nothing  to 
show  the  number  of  notes  to  be  given,  interest  thereon,  or  date  of  payment. 
Nelson  v.  Improvement  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116. 
In  a  memorandum  of  a  conti-act  for  the  sale  of  lands  or  goods  the  price  must 
be  stated.  Phelps  v.  Stillings,  60  N.  H.  505;  Watt  v.  Cranberry  Co.,  63  Iowa, 
730,  18  N.  W.  898;  Phillips  v.  Adams,  70  Ala.  373;  Ide  v.  Stanton,  15  Vt 
686,  40  Am.  Dec.  698.  But  failure  to  state  the  price,  where  an  adequate  price 
was  in  fact  paid,  was  held  not  to  render  the  memorandum  insufficient.  Say- 
ward  V.  Gardner,  5  Wash.  247,  81  Pac,  761. 


86  STATUTE   OF   FRAUDS.  (Ch.  4 

particular  forms  are  required,  and  it  looks  at  the  substance  of  the 
contract.  It  requires  a  note  or  memorandum  of  the  contract,  not 
a  detail  of  all  its  particulars."  ®*  While  this  is  no  doubt  sound  law, 
it  must  not  be  taken  to  mean  that  any  of  the  terms  of  the  contract 
can  be  shown  by  parol. 

Showing  as  to  Subject-M alter. 

The  writing  must  also  show  the  subject-matter,  at  least  to  such 
an  extent  that  it  can  be  identified.®^  Parol  evidence  is  admitted  to 
identify  the  subject-matter  to  which  the  writing  refers ;  as,  for  in- 
stance, to  identify  a  house  described  in  the  writing  as  a  "house  on 
Church  street,"  or  property  described  as  "your  half,  E.  B.  wharf, 
and  premises  this  day  agreed  upon  between  us."  ®* 

Showing  as  to  Consideration. 

Not  only  must  a  consideration  for  the  promise  sought  to  be  en- 
forced exist,  but  it  must,  according  to  the  rulings  in  England,  and 
probably  in  most  of  the  states,  expressly  or  impliedly  appear  in  the 
memorandum.  As  stated  by  Lord  Ellenborough  in  the  leading  case 
on  this  point,  the  reason  for  the  rule  is  because  the  word  "agree- 
ment," used  in  the  statute,  "is  not  satisfied  unless  there  be  a  con- 


«2  Atwood  V.  Cobb,  16  Pick.  (Mass.)  230,  26  Am.  Dec.  657.  And  see  Peck 
V.  Vandemark,  99  N.  Y.  29,  1  N.  E.  41;  Frazer  v.  Howe,  106  111.  563;  Far- 
well  V.  Mather,  10  Allen  (Mass.)  322,  87  Am.  Dec.  641;  Gordon  v.  Avery,  102 
N.  C.  532,  9  S.  B.  486. 

93  Whelan  v.  Sullivan,  102  Mass.  204;    Beekman  v.  Fletcher,  48  Mich.  555, 

12  N.  W.  849;  Tice  v.  Freeman,  30  Minn.  389,  15  N.  W.  674;  King  v.  Wood, 
7  Mo.  389. 

84  Mead  v.  Parker,  115  Mass.  413;  Tallman  v.  Franklin,  14  N.  Y.  584;  Ryan 
V.  United  States,  136  U.  S.  68,  10  Sup.  Ct.  913,  34  L.  Ed.  447;  Mellon  v.  Davi- 
son, 123  Pa.  298,  16  Atl.  431;  Henderson  v.  Perkins,  94  Ky.  207,  21  S.  W.  1035; 
Dougherty  v.  Chesnutt,  86  Tenn.  1,  5  S.  W.  444;  Lente  v.  Clarke,  22  Fla. 
515,  1  South.  149;  Cossitt  v.  Hobbs,  56  111.  231;  Hollis  v.  Burgess,  37  Kan. 
487,  15  Pac.  536;  Quinn  v.  Champagne,  38  Minn.  322,  37  N.  W.  451;  Breck- 
inridge v.  Crocker,  78  Cal.  529,  21  Pac.  179;  Humbert  v.  Brisbane,  25  S.  C. 
506;  Oliver  v.  Hunting,  44  Ch.  Div.  205;  Francis  v.  Barry,  69  Mich.  311,  37 
N.  W.  353.  A  memorandum  is  not  sufficient  where  it  merely  describes  it  as 
"an  estate  on  A.  street,  owned  by  B.,"  and  the  evidence  shows  that  B.  own- 
ed two  estates  on  that  street.  DOHERTY  v.  HILL,  144  Mass.  4G5,  11  N.  E. 
581.  And  see  Jones  v.  Tye,  93  Ky.  390,  20  S.  W.  388;  Alabama  Mineral  Land 
Co.  V.  Jackson,  121  Ala.  172,  25  South.  709,  77  Am.  St.  Rep.  46.  "Your  land," 
in  a  letter  to  the  alleged  vendor  is  not  sufficient.  Taylor  v.  Allen,  40  Minn. 
433,  42  N.  W.  292.  And  see  Lowe  v.  Harris,  112  N.  C.  472,  17  S.  E.  539,  22 
L.  R.  A.  379.  A  memorandum  that  P.  shall  have  the  land  "of  which  he  is 
now  in  possession"  has  been  held  sufficient.     Phillips  v.  Swank,  120  Pa.  76, 

13  Atl.  712,  6  Am.  St.  Rep.  691.  And  see  Falls  of  Neuse  Mfg.  Co.  v.  Hen- 
dricks, 106  N.  C.  485,  11  S.  E.  5GS.  An  agreement  for  the  sale  of  a  designated 
number  of  acres  "in"  a  specified  larger  tract  of  land  is  not  sufficient.  Brock- 
way  v.  Frost,  40  Minn.  155,  41  N.  W.  411.  And  see  Repetti  v.  Maisak,  6  Mack- 
ey,  366. 


§§  4Ar-^9)  FORM   REQUIRED.  87 

sideration,  which  consideration,  forming  part  of  the  agreement, 
ought,  therefore,  to  have  been  shown ;  and  the  promise  is  not  bind- 
ing by  the  statute  unless  the  consideration  which  forms  part  of  the 
agreement  be  also  stated  in  writing."  °^  Other  courts  have  re- 
fused to  recognize  this  doctrine,  though  in  some  of  these  cases  the 
statute  used  the  word  "promise"  instead  of  "agreement."  ^^  Most 
of  the  states,  however,  have  put  this  question  at  rest  by  statutory 
provisions  expressly  declaring  it  necessary  °^  or  unnecessary  °^  to  ex- 
press the  consideration  in  the  writing.  Even  where  the  statute  pro- 
vides that  the  consideration  need  not  be  expressed,  it  must  be  ex- 
pressed if  it  is  executory,  and  modifies  the  promise;  for  in  such  case 
it  is  a  term  of  the  contract.®® 

Separate  Papers. 

The  memorandum  may  consist  in  any  number  of  letters,  tele- 
grams, or  other  pieces  of  paper.""  The  papers,  however,  must  be 
connected,  consistent,  and  complete. 

9  8  Wain  V.  Warlters,  5  East,  10.  And  see  Sears  v.  Brink,  3  Jobns.  (N.  Y.) 
210,  3  Am.  Dee.  475;  Taylor  v.  Pratt,  3  Wis.  074;  Tliompson  v.  Blanchard,  3 
N.  Y.  335;  Ordeman  v.  Lawson,  49  Md.  135;  Sloan  v.  Wilson,  4  Har.  &  J. 
(Md.)  322,  7  Am.  Dec.  672;  Buckley  v.  Beardslee,  5  N.  J.  Law,  572,  8  Am. 
Dec.  620;  Gregory  v.  Logan,  7  Blackf.  (Ind.)  112;  Ellison  v.  Water  Co.,  12 
Cal.  542;  Hargroves  v.  Cooke,  15  Ga.  321.  It  is  sufficient  if  the  consideration 
can  be  gathered  from  the  entire  contract.  The  words  "value  received"  have 
been  held  enough.  Watson's  Ex'rs  v.  McLaren,  19  Wend.  (N.  Y.)  557;  D. 
M.  Osborne  &  Co.  v.  Baker,  34  Minn.  307,  25  N.  W.  606.  57  Am.  Rep.  55;  Ede- 
lin  V.  Gough,  5  Gill  (Md.)  103;  Emerson  v.  C.  Aultman  &  Co.,  69  Md.  125,  14 
Atl.  671;  Smith  v.  Northrup,  80  Hun,  65,  29  N.  Y.  Supp.  851.  The  presence  of 
a  seal  has  been  held  a  sufficient  recital  of  the  consideration.  Johnston  v. 
Wadsworth,  24  Or.  494,  34  Pac.  13;    Smith  v.  Northrup,  supra. 

06  Packard  y.  Richardson,  17  Mass.  122,  9  Am.  Dec.  123;  Brittain  v.  Alngier, 
48  N.  H.  422;  Gillighan  v.  Boardman,  29  Me.  79;  Patchin  v.  Swift,  21  Vt. 
292 ;  Shively  v.  Black,  45  Pa.  345 ;  Sage  v.  Wilcox,  6  Conn.  81 ;  Violett  v.  Pat- 
ton,  5  Cranch,  151,  3  L.  Ed.  61  (construing  the  Virginia  statute);  Reed  v. 
Evans,  17  Ohio,  128 ;  Steadman  v.  Guthrie,  4  Mete.  (Ky.)  147 ;  Taylor  v.  Ross, 
3  Yerg.  (Tenn.)  330;  Adkins  v.  Watson,  12  Tex.  199;  Halsa  v.  Halsa,  8  Mo. 
303;  How  V.  Kemball,  2  McLean,  103,  Fed.  Cas.  No.  6,748;  Brown  v.  Fowler, 
70  N.  H.  211,  47  Atl.  412. 

97  It  is  declared  necessary  in  Alabama,  Minnesota,  Nevada,  and  Oregon.  A 
guaranty  of  a  note,  written  by  a  third  person  on  the  note  before  delivery, 
need  express  no  consideration,  since  the  guaranty  requires  no  other  consider- 
ation than  that  which  the  note  on  its  face  implies  to  have  passed  between 
the  original  parties.  Moses  v.  Bank,  149  U.  S.  298,  13  Sup.  Ct.  900,  37  L.  Ed. 
743  (under  Alabama  statute).  Contra:  Commercial  Nat.  Bank  v.  Smith,  107 
Wis.  574,  83  N.  W.  766.  It  is  otherwise  if  the  guaranty  is  written  after  the 
note  has  been  delivered  and  taken  effect  as  a  contract.    Moses  v.  Bank,  supra. 

9  8  It  is  declared  unnecessary  in  Illinois,  Indiana,  Kentucky,  Maine,  Massa- 
chusetts, Michigan,  Nebraska,  New  Jersey,  and  Virginia.  See  HAYES  v. 
JACKSON,  159  Mass.  451,  34  N.  E.  683. 

99  See  Drake  v.  Seaman,  97  N.  Y.  230. 

100  Reuss  T.  Picksley,  L.  R.  1  Exch.  342;    Ryan  v.  United  States,  136  U.  S. 


88  STATUTE  OF  FRAUDS.  (Ch.  4 

It  is  generally  held  that  the  connection  between  various  papers 
must  be  made  out  from  the  papers  themselves/"^  and  that  it  cannot 
be  shown  by  parol  evidence. ^°^  But,  if  one  paper  is  referred  to  in 
another,  it  may  be  identified  by  parol  evidence. ^"^* 

To  say  that  the  papers  must  be  consistent  is  merely  to  reiterate 
what  was  said  in  treating  of  offer  and  acceptance. 

Signahire. 

It  is  essential  that  the  memorandum  be  signed  by  "the  party  to  be 
charged,"  or  some  other  person  by  him  lawfully  authorized.^°*  As 
to  whether  it  must  have  been  signed  by  the  party  seeking  to  enforce 
it,  there  is  some  conflict.  Probably  all  courts  hold  that  it  need  not 
be  so  signed  if  the  consideration  given  by  the  party  suing  is  exe- 
cuted.    The   conflict   is   where  there  are   mutual  promises.     Some 

83,  10  Sup.  Ct.  913,  34  L.  Ed.  447;  Hollis  v.  Burgess,  37  Kan.  487,  15  Pac. 
536;  Lee  v.  Cherry,  So  Tenn.  707,  4  S.  W.  835,  4  Am.  St.  Rep.  800;  Roelil  v. 
Haumesser,  114  Ind.  311,  15  N.  E.  345;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Settegast, 
79  Tex.  256,  15  S.  W.  228 ;  Bayne  v.  Wiggins,  139  U.  S.  210,  11  Sup.  Ct.  521,  35 
Lt.  Ed.  144;   Olson  v.  Sbarpless,  53  Minn.  91,  55  N.  W.  125. 

101  If  ail  the  separate  papers  are  signed,  reference  in  the  one  to  the  other 
need  not  be  made,  if  by  inspection  and  comparison  it  appears  that  they  form 
part  of  Hie  same  transaction.  Thayer  v.  Luce,  22  Ohio  St.  62.  See,  also, 
Brewer  v.  Horst  &  Lachmund  Co.,  127  Cal.  643,  60  Pac.  418,  50  L.  R.  A,  240. 
But  see  Potter  v.  Peters,  72  L.  J.  Rep.  624. 

102  Where  a  person  issued  a  prospectus  of  illustrations  of  Shakspeare,  to 
be  published  on  terms  of  subscription  therein  set  out,  and  A.  entered  his 
name  in  a  book  entitled  "Shakspeare  Subscribers,  their  Signatures,"  in  the 
publisher's  shop,  and  afterwards  refused  to  subscribe,  it  was  held  that  there 
was  no  sufficient  reference  to  connect  the  subscription  book  with  the  pro- 
spectus, so  as  to  make  a  memorandum.  Boydell  v.  Drummond,  11  Eiast,  142. 
And  see  Peirce  v.  Corf,  L.  R.  9  Q.  B.  210;  Taylor  v.  Smith,  61  Law  J.  Q.  B. 
331;  Morton  v.  Dean,  13  Mete.  (Mass.)  385;  O'DONNELL  v.  LEEMAN,  43 
Me.  158,  69  Am.  Dec.  54;  Doughty  v.  Manhattan  Brass  Co.,  101  N.  Y.  644,  4 
X.  E.  747;  North  v.  Mendel,  73  Ga.  400,  54  Am.  Rep.  879;  Oliver  y.  Insurance 
Co.,  82  Ala.  417,  2  South.  445;  Orne  v.  Cook,  31  111.  238;  Duff  v.  Hopkins 
(D.  C.)  33  Fed.  599;  Coombs  v.  "Wilkes  [1891]  3  Ch.  77;  Andrew  t.  Babcock, 
63  Conn.  109,  26  Atl.  715.  A  contract  for  the  sale  of  land,  containing  no  de- 
scription of  it,  was  held  insufficient,  though  there  was  a  description  of  land 
on  the  back  of  the  paper,  there  being  no  words  to  connect  the  indorsement 
with  the  conti-act.  Wilstach  v.  Heyd,  122  Ind.  574,  23  N.  E.  963.  Reciprocal 
wills  not  refen-ing  to  each  other.    Hale  v.  Hale,  90  Va.  728,  19  S.  E.  739. 

103  Long  v.  Miller,  4  C.  P.  Div.  450;  Oliver  v.  Insurance  Co.,  82  Ala.  417,  2 
South.  445;  BECKWITH  v.  TALBOT,  95  U.  S.  289,  24  L.  Ed.  496;  Peck  v. 
Vandemark,  99  N.  Y.  29,  1  N.  E.  41;  Work  v.  Cowhick,  81  111.  317;  Lee  v. 
Butler,  167  Mass.  426,  46  N.  E.  52,  57  Am.  St.  Rep.  466. 

104  Sanborn  v.  Sanborn,  7  Gray  (Mass.)  142;  Cloud  v.  Greasley,  125  III. 
313,  17  N.  E.  826;  Rafferty  v.  Lougee,  63  N.  H.  54;  Bailey  v.  Ogden,  3  Johns. 
(N.  Y.)  399,  3  Am.  Dec.  509;  Guthrie  v.  Anderson,  47  Kan.  383,  28  Pac.  164, 
30  Pac.  459;  McElroy  v.  Seery,  61  Md.  389,  48  Am.  Rep.  110;  Moore  v.  Pow- 
ell, 6  Tex.  Civ.  App.  43,  25  S.  W.  472,  Cf.  Gardels  v.  Kloke,  36  Neb.  493, 
54  N.  W.  834. 


§§44^9)  FOBM   BEQUTEED.  89 

couns  'r.;!i  :r.  these  cases  that  the  contract,  not  being  enforceable 
against  the  part;  rs  not  signed  it,  is  void  for  want  of  nantual- 

ity.ios     JMost  cc.r-s  -at  the  statute  is  satisfied  if  the  memo- 

randum is  signei  :;  ....  __:;y  against  whom  it  is  sought  to  be  en- 
forced. ^«« 

The  signature  may  be  by  mark  *•'  or  initials,**"  or  it  may  be  print- 
ed, stamped,  or  engraved.***  Nor  need  the  signature  be  placed  at 
the  end  of  the  document  as  a  formal  signature.  If  the  name  of  the 
party  to  be  charged  appear  in  the  memorandum,  so  as  to  be  appHca- 
ble  to  the  whole  substance  of  the  writing,  and  was  written  by  him- 
self, or  by  his  authorized  agent,  it  is  immaterial  where  the  name  ap- 
pears, whether  a:  -.'.'.-:  -:p  or  at  the  bottom,  or  whether  it  is  merely 
mentioned  in  :: vr  :  :  iy  of  the  memorandum.***  Where,  however, 
the  statute  r  r  5  the  rrtemorandum  to  be  "subscribed,"  it  has 
been  held  :  :=  ;r.u;.  be  a  formal  signature  at  the  bottom  of 

the  me  ~  :  r ; . .  1  u : . . .  -  ^ 

A  p^r.     :j  a  contract  may  sign  a  rough  draft  of  its  terms,  and 

105  Wilkmson  v.  Heavenriclu  5S  Mielu  574.  26  X.  W.  139,  55  Am.  Uep.  708; 
Corbitt  T.  Gas!:g':;t  C:  o  Or.  4Sto,  25  Am.  Eep.  541;  Krolm  v.  Bantz,  68  Ind. 
277;  Thomas  Ex  x  v.  Tristees,  3  A.  K.  Marsli.  <Ky.)  2S«;  Stiles  t.  MeGlellan, 
6  Colo.  89. 

106  Justice  V.  Laag.  42  X.  1.  4&3.  1  A~.  Sep.  576:  Keu&s  v.  Picksley.  L.  R.  1 
Exch.  342:  CLASON  v.  BaTLF.Y.  14  Joims.  ^N.  T.i  4S7;  Old  Colony  R.  Co  t. 
Evans,  6  Gray  (Mass.)  ^,  66  Am,  Dec  394;  Love  t.  Welch.  97  X.  C.  200,  2  S. 
E.  242:  Williams  t.  Bohinson,  73  Me.  1S6;  Olirer  t.  Insurance  Co.,  S2  Ala. 
417,  2  South.  445:  J.  I.  Case  Threshing  Mach.  Co.  t.  Smith,  16  Or.  SSL,  IS  Pac 
641:  Smith's  Appeal.  69  Pa.  4S1:  Anderson  t.  Harold.  10  Ohio,  399;  Ires  t. 
Hazard.  4  R.  I.  SL  67  Am.  Dec.  500;  Hodges  t.  Rowing.  5S  Conn.  12.  IS  Atl. 
979,  7  L.  R.  A.  S7;  Perkins  t.  Hadsell,  50  Bl.  217:  Gartrell  v.  Stafford.  12 
Neb.  545,  11  X.  W.  732,  41  Am.  Rep.  767:  Cunningham  t.  Williams.  43  Mo. 
App.  629;  Scott  t.  Glenn,  97  Cal.  513,  32  Pac.  9S3:  Jones  t.  Davis.  4S  X.  J. 
Eq.  493,  21  AU.  1035. 

10"  Baker  v.  Dening,  S  AdoL  &  E.  94:  Zaeharie  v.  Franklin,  12  Pet  151,  9 
L.  Ed.  1035;   Brown  v.  Bank,  6  Hill  (X.  Y.)  443.  41  Am.  Dec.  755. 

10s  Sanborn  v.  Flagler.  9  Allen  (Mass.)  474:  SAEMOX  FALLS  MFG.  CO. 
T.  GODDARD.  14  How.  447,  14  L.  Ed-  493;  Palmer  v.  Stephens,  1  Demo  (X. 
Y.)  471. 

103  Bennett  v.  Broiriu,  L  K.  3  C.  P.  30:  Drury  t.  Young,  5S  Md.  546.  42 
Am.  Rep.  343;  Schneider  v.  Norris.  2  Maule  &  S.  2S6;  Weston  v.  Myers.  33 
IlL  424. 

110  Davis  V.  Shields,  26  Wend.  (N.  Y.)  341,  353;  Coddington  v.  Goddard, 
16  Gray  Olass.)  444;  Caton  v.  Caton,  L.  R.  2  H.  I*  127;  CLASOX  v.  BAILEY, 
14  Joiins.  iX.  Y.)  4S4:  Boardman  v.  Spooner.  13  Allen  i^Mass.l  35S,  90  Am. 
Dec.  196;  Penniman  v.  Hartshorn,  13  Mass.  S7;  ETAXS  v.  HOARE  [1892] 
1  Q.  B.  593;  Braley  v.  Kelly,  25  Minn.  160;  Tingley  v.  Boom  Co.,  5  Wash.  St 
644,  32  Pac.  737.  33  Pac.  1055. 

111  Davis  V.  Shields.  26  Wend.  (X.  Y.)  341.  And  see  James  v.  Patten,  6  X. 
Y.  9,  55;   Champlin  v.  Parrish,  11  Paige  (X.  Y.)  405. 


90  STATUTE   OP   FRAUDS.  (Ch.  4 

acknowledge  his  signature  when  the  draft  has  been  corrected,  and 
the  contract  is  actually  concluded.^^* 

Signature  by  Agent. 

The  memorandum  may  be  signed  by  the  duly-authorized  agent  of 
the  party  to  be  charged. ^^^  The  agent  must  not  be  the  other  con- 
tracting party,  but  some  third  person,  for  to  allow  otherwise  would 
be  to  open  the  door  for  the  fraud  which  the  statute  was  intended  to 
prevent. ^^* 

In  cases  of  sales  at  auction,  the  auctioneer,  acting  only  as  such, 
is  the  competent  agent  of  both  parties,  and  his  memorandum  is  bind- 
ing on  both.  He  is  the  agent  of  the  vendor  by  virtue  of  his  em- 
ployment, and  he  is  made  the  agent  of  the  vendee  by  the  act  of  the 
latter  in  giving  him  his  bid,  and  receiving  the  announcement  that 
the  property  is  knocked  off  to  him  as  purchaser.^^"^  This,  however, 
does  not  apply  where  the  vendor  is  himself  the  auctioneer.^^*  The 
memorandum  must  be  made  at  the  time  of  the  sale.^^^ 

As  we  have  already  seen,  if  the  agent  signs  his  own  name,  the 
other  party  to  the  contract  may  show  by  parol  that  he  really  con- 
tracted with  the  principal. ^^^  The  agent,  however,  after  making 
the  contract  in  his  own  name,  cannot  show  by  parol  that  he  is  not 
the  real  party  to  the  contract.^^® 

Unless  the  statute  expressly  so  requires,  the  authority  of  the  agent 
need  not  be  in  writing.^^'^  In  some  states,  however,  the  statute 
does  so  require  in  the  case  of  contracts  relating  to  land.^^^ 

112  Stewart  v,  Eddowes,  L.  R.  9  C.  P.  314. 

113  Heffron  v.  Armsby,  61  Micb.  505,  28  N.  W.  672;  Tynan  v.  Dullnig  (Tex, 
Civ.  App.)  25  S.  W.  465.  Signature  by  broker  as  agent  is  sufficient.  Williams 
V.  Woods,  16  Md.  220. 

114  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295.  And  see  Sherman 
V.  Brandt,  L.  R.  6  Q.  B.  720;  Farebrotber  v.  Simmons,  5  Barn.  &  Aid.  333; 
Carlisle  v.  Campbell,  76  Ala.  247;  Drury  v.  Young,  58  Md.  546,  42  Am.  Rep. 
343. 

115  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295;  Trustees  of  First 
Baptist  Cburch  v.  Bigelow,  16  Wend.  (N.  Y.)  28;  Morton  v.  Dean,  13  Mete. 
(Mass.)  385;  McBrayer  v.  Cohen  (Ky.)  18  S.  W.  123;  Meadows  v.  Meadows,  3 
McCord  (S.  C.)  458,  15  Am.  Dec.  615;  Singstack's  Ex'rs  v,  Harding,  4  Har.  & 
J.  (Md.)  186,  7  Am.  Dec.  669.     See  Wyckoff  v.  Mickle  (N.  J.  Ch.)  20  Atl.  214. 

116  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295. 

117  Gill  V.  Bicknell,  2  Cush.  (Mass.)  355;    Horton  v.  McCarty,  53  Me.  394. 

118  Ante,  p.  84. 

119  Higgins  V.  Senior,  8  Mees.  &  W.  834;  Waring  v.  Mason,  18  Wend.  (N. 
Y.)  425. 

120  Roehl  V.  Haumesser,  114  Ind.  311,  15  N.  E.  345;  Kennedy  v.  Ehlen.  31 
W.  Va.  540,  8  S.  E.'398;  Watson  v.  Sherman,  84  111.,  at  page  267.  But  see 
Simpson  v.  Com.,  89  Ky.  412,  12  S.  W.  630. 

121  Hall  V.  Wallace,  88  Gal.  434,  26  Pac.  360;  Gerhart  v.  Peck,  42  Mo.  App. 
644;  Castner  v.  Richardson,  18  Colo.  496,  33  Pac.  163;  Kozel  v.  Dearlove,  144 
111.  23,  32  N.  E.  542,  36  Am.  St.  Rep.  416. 


§§  60-51)  EFFECT   OF   NONCOMPLIANCE,  91 

Delivery. 

The  memorandum,  beings  required  merely  as  evidence  of  the  con- 
tract, need  not  be  delivered. ^^^  Nondelivery  is  only  material  in  so 
far  as  it  may  tend  to  show  that  no  final  agreement  has  been  reached. 
It  is  held,  however,  that  a  deed  of  land  must  be  delivered  to  consti- 
tute a  sufficient  memorandum.^ ^^  A  delivery  of  the  deed  in  escrow 
is  sufficient.^^*  z^-' 

T^  SAME— EFFECT  OF  NONCOMPLIANCE. 

50-51.  Failure  to  comply  xiritli  the  requirement  of  the  fourth  section 
does  not  render  one  contract  void,  but  merely  excludes  parol 
proof,  and  renders  it  unenforceable. 

The  English  statute,  which  has  been  followed  by  the  statutes  of 
most  of  the  states,  does  not  declare  that  the  contracts,  if  entered 
into  orally,  shall  be  void,  but  simply  that  "no  action  shall  be  brought" 
on  them.  The  statute  does  not  go  to  the  existence  of  the  contract, 
but  merely  makes  written  evidence  necessary  to  establish  it.  The 
contract  is  not  void,  but  simply  unenforceable  by  suit.^^"* 

Though  the  contract  cannot,  for  this  reason,  be  sued  upon  suc- 
cessfully, it  is  available  for  some  purposes.  If  it  has  been  fully  per- 
formed, the  courts  will  recognize  and  protect  the  rights  of  the  par- 
ties acquired  under  it.  And  if  it  has  been  performed  by  one  of  the 
parties  by  payment  of  the  consideration  he  will  not  be  allowed  to 
recover  back  what  he  has  paid,  where  the  other  party  is  willing  to 
perform  on  his  part.^^** 

122  Drury  v.  Young,  58  Md.  546,  42  Am.  Rep.  343. 

123  Wier  V.  Batdorf,  24  Neb.  83,  38  N.  W.  22;  Callanan  v.  Chapin,  158  Mass. 
113,  32  N.  K  941;  Swain  v.  Burnette,  89  Cal.  564,  26  Pac,  1093;  Day  v.  Lacasse, 
85  Me.  242,  27  Atl.  124.  And  see  Kopp  v.  Reiter,  146  111.  437,  34  N.  E.  942,  22 
L.  R.  A.  273,  37  Am.  St.  Rep.  156.  But  see  Johnston  v.  Jones,  85  Ala.  286,  4 
South.  748. 

124  Johnston  v.  Jones,  85  Ala.  286,  4  South,  748;  Cannon  v.  Handley,  72 
Cal.  133,  13  Pac.  315;  Lewis  v.  Prather  (Ky.)  21  S.  W.  538.  But  see  Ducett 
V.  Wolf,  81  Mich.  311,  45  N.  W.  829. 

12  B  Leroiix  v.  Brown,  12  C.  B.  801;  Townsend  v.  Hargraves,  118  Mass.  325; 
Montague  v.  Garnett,  3  Bush  (Ky.)  297;  Baker  v.  Lauterbach,  68  Md.  64,  11 
Atl.  703;  Crane  v.  Gough,  4  Md.  316;  Newton  v.  Bronson,  13  N.  Y.  587,  67 
Am.  Dec.  89;  Brakefield  v.  Anderson,  87  Tenn.  206,  10  S.  W.  360;  Browning 
V.  Parker,  17  R.  I.  183,  20  Atl.  835;  Ohio  &  M.  R.  Co.  v.  Trapp,  4  Ind.  App. 
69,  30  N.  E.  812;  Montgomery  v.  Edwards,  46  Vt.  151,  14  Am.  Rep.  618;  Chi- 
cago Dock  Co.  V.  Kiuzie,  49  111.  289;  La  Du-King  Mfg.  Co.  v.  La  Du,  36  Minn. 
443,  31  N.  W.  938;  BIRD  v.  MUNROE,  66  Me.  337,  22  Am.  Rep.  571.  The 
courts  often  use  the  word  "void"  carelessly,  and  the  fact  that  they  speak 
of  a  contract  as  void  cannot  always  be  relied  on. 

126  Galway  v.  Shields,  66  Mo.  313,  27  Am.  Rep.  351;  Coughlin  v.  Knowles, 
7  Mete.  (Mass.)  57;  Sims  v.  Hutchins,  8  Smedes  <x,  M.  (Miss.)  331,  47  Am.  Dec. 


92  STATUTE   OF   FRAUDS.  (Ch.  4 

In  some  states,  however,  the  statute  declares  that  the  contract 
"shall  be  void"  unless  in  writing.^^^  In  these  states  it  seems  that 
the  statute  goes  to  the  existence  of  the  contract,  and  renders  it  abso- 
lutely void.  In  a  Massachusetts  case,  however,  in  construing  the 
section  of  the  statute  of  that  state  relating  to  contracts  for  the  sale 
of  goods,  which  declared  that  no  such  contract  should  be  held  to  be 
good  and  "valid,"  it  was  held  that  it  was  not  the  intention  of  the 
legislature  to  declare  such  contracts  void,  but  simply  to  prevent  oral 
proof.^-® 

Further  illustration  of  the  rule  that  a  contract  which  does  not 
comply  with  the  statute  is  not  void,  but  simply  unenforceable,  is 
found  in  the  mode  in  which  courts  of  equity  deal  with  such  contracts, 
to  be  presently  explained. 

Part  Performance. 

At  law,  unless  the  statute  so  provides,  part  performance  of  a  ver- 
bal contract  does  not  take  it  out  of  the  operation  of  the  statute  ;^^* 
but  it  is  otherwise  in  equity. 

Same — In  Bqtdty. 

A  court  of  equity  will  dispense  with  the  written  evidence  required 
by  the  statute  when  one  of  the  parties  has  under  certain  conditions 
performed  his  part  of  the  contract. 

The  equitable  rule  has  sometimes  been  limited  to  contracts  relat- 
ing to  an  interest  in  land;^^°  but  "it  is  probably  more  accurate  to 

90;  Shaw  v.  Shaw,  6  Vt.  G9;  HAWLEY  v.  MOODY,  24  Vt,  G05.  And  see 
Lane  v.  Shackford,  5  N.  H.  130;  Richards  v.  Allen,  17  Me.  296;  Bedinger 
V.  Whittamore,  2  J.  J.  Marsh.  (Ky.)  5G3:  Collier  v.  Coates,  17  Barb.  (N.  Y.) 
473;  McKiuney  v.  Harvie,  38  Minn.  18,  35  N.  W.  6(J8,  8  Am.  St.  Rep.  640;  Nel- 
son V.  Improving  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116;  But- 
ler V.  Dinan,  65  Hun,  620,  19  N.  Y.  Supp.  950.  But  see  Hartwell  v.  Young, 
67  Hun,  472,  22  N.  Y.  Supp.  486,  m  which  it  was  held  that  a  person  orally 
employed  for  a  longer  period  than  a  year  may  abandon  the  contract  without 
fault  on  his  employer's  part,  and  recover  for  the  sei-vices  rendered;  post,  p. 
553. 

127  See  Popp  V.  Swanke,  68  Wis.  364,  31  N.  W.  916.  Such  are  the  statutes 
of  Alabama,  California,  Michigan,  Nevada,  New  York,  Oregon,  Wisconsin. 

128  Townsend  v.  Hargraves,  118  Mass.  325. 

129  Chicago  Attachment  Co.  v.  Sewing-Mach.  Co.,  142  111.  171,  31  N.  E. 
438,  15  L..  R.  A.  754;  HeniT  v  Wells,  48  Ark.  485,  3  S.  W.  637;  Wheeler  v. 
Frankentlial,  78  111.  124;  Nally  v.  Reading,  107  Mo.  350,  17  S.  W.  978;  Brown 
V.  Pollard,  89  Va.  096,  17  S.  E.  6.  The  statute  does  expressly  provide  in 
Iowa,  Alabama,  and  probably  in  other  states,  that  certain  acts  of  part 
performance  shall  take  the  contract  out  of  the  statute.  Louisville  &  N.  R.  Co. 
v.  Philyaw,  94  Ala.  463,  10  South.  83;   Price  v.  Lien,  84  Iowa,  590,  51  N.  W.  52. 

130  Brittain  v.  Rossiter,  11  Q.  B.  Div.  123.  And  see  Osborne  v.  Kimball,  41 
Kan.  187,  21  Pac.  163 ;  McElroy  v.  Ludluui,  32  N.  J.  Eq.  828.  As  to  conti-acta 
in  consideration  of  marriairo,  see  ante,  p.  80.  As  to  contracts  not  to  be  per- 
formed within  a  year,  see  ante,  p.  72. 


§§  50-51)  EFFECT   OF   NONCOMPLIANCE.  93 

say  that  the  doctrine  of  part  performance  appHes  to  all  cases  in 
which  a  court  of  equity  would  entertain  a  suit  for  specific  perform- 
ance if  the  alleged  contract  had  been  in  writing."  ^^^ 

Even  in  the  case  of  contracts  relating  to  land  it  is  not  enough  that 
services  have  been  rendered  in  consideration  of  a  verbal  promise  to 
grant  lands,  nor  that  the  price  has  otherwise  been  paid  in  whole  or 
in  part;  for  the  acts  relied  upon  as  part  performance  "must  be  un- 
equivocally, and  in  their  own  nature,  referable  to  some  such  agree- 
ment as  that  alleged."  ^^^  Where,  however,  the  purchaser  has  taken 
possession  ^^^  under  a  verbal  contract  for  the  sale  of  land,  and  paid 

131  McManus  v.  Cooke,  35  C.  D.  G97,  per  Kay,  J.  See  Anson,  Cont.  (8th 
Ed.)  70. 

132  Maddison  v.  Alderson,  8  App.  Cas.  479,  7  Q.  B.  Div.  174.  In  this  case 
a  promise  of  a  gift  of  land  had  been  made  to  a  person  in  consideration  of 
her  remaining  in  the  service  of  the  promisor  during  his  lifetime.  It  was 
held  that  the  continuance  of  the  service  for  the  required  period  could  not  he 
regarded  as  exclusively  referable  to  the  promised  gift.  It  might  have  rested 
on  other  considerations.  And  see  Rogers  v.  Wolfe,  104  Mo.  1,  14  S.  W.  805; 
Shahan  v.  Swan,  48  Ohio  St.  25,  26  N.  E.  222,  29  Am.  St  Rep.  517;  Smith 
V.  Pierce,  65  Vt.  200,  25  Atl.  1092.  But  see  Brinton  v.  Van  Cott,  8  Utah,  480, 
33  Pac.  218. 

That  payment  or  part  payment  of  the  purchase  money  is  not  alone  suffi- 
cient, see  Glass  v.  Hulbert,  102  Mass.,  at  page  28,  3  Am.  Rep.  418;  BroTvn  v. 
Pollard,  89  Va.  696,  37  S.  E.  6;  Peckham  v.  Balch,  49  Mich.  179,  13  N.  W.  506; 
Boulder  Valley  D.,  M.  &  M.  Co.  v.  Farnham,  12  Mont.  1,  29  Pac,  277;  Web- 
ster V.  Gray,  37  Mich.  37;  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252; 
Crabill  v.  Marsh,  38  Ohio  St.  331;  Towusend  v.  Vanderwerker,  20  D.  C.  197; 
Washington  Brewery  Co.  v.  Carry  (Md.)  24  Atl.  151;  Horn  v.  Luddington, 
32  Wis.  73;  Forrester  v.  Flores,  04  Cal.  24,  28  Pac.  107;  Gallagher  v.  Galla- 
gher, 31  W.  Va.  9,  5  S.  E.  297;  Maxfleld  v.  West,  6  Utah.  327,  379,  23  Pac. 
754,  and  24  Pac.  98;  Humbert  v.  Brisbane,  25  S.  C.  506;  Temple  v.  Johnson, 
71  111.  13;  Cronk  v.  Trumble,  66  111.  428;  Goddard  v.  Donaha,  42  Kan.  754, 
22  Pac.  708.  Contra,  where  the  price  consisted  of  the  dismissal  of  actions 
and  marriage  with  a  certain  woman.  Slingerland  v.  Slingerlaud,  39  Minn. 
197,  39  N.  W.  146.  And  see  Barbour  v.  Barbour,  49  N.  J.  Eq.  429,  24  Atl. 
227.  But  marriage  alone  between  the  vendor  and  vendee  is  not  sufficient. 
Peek  v.  Peek,  77  Cal.  106,  19  Pac.  227,  1  L.  R.  A.  185,  11  Am.  St.  Rep.  244.  It 
is  otherwise  where  there  has  been  fraud  in  procuring  the  marriage.  Id. 
Promise  to  devise  land  to  lue  promisee's  daughter  if  he  will  allow  the 
promisor  to  adopt  her.  Pond  v.  Sheean,  132  111.  312,  23  N.  E.  1018,  8  L.  R.  A. 
414.  Relinquishing  of  position  by  son-in-law,  and  living  on  land  under  agree- 
ment by  father-in-law  to  give  it  to  him.  Welch  v.  Whelpley,  62  Mich.  15,  28 
N.  W.  744,  4  Am.  St.  Rep.  810.  Delivery  of  deed  as  part  performance.  Luza- 
der  V.  Richmond,  128  Ind.  344,  27  N.  E.  736;  Swain  v.  Burnette,  89  Cal.  564, 
26  Pac.  1093. 

133  As  to  what  constitutes  sufficient  possession,  see  Hunt  v.  Lipp,  30  Neb. 
469,  46  N.  W.  632;  Emmel  v.  Hayes,  102  Mo.  186,  14  S.  W.  209,  11  L.  R.  A.  323, 
22  Am.  St.  Rep.  769;  Neibert  v.  Baghurst  (N.  J.  Ch.)  25  Atl.  474;  Swales  v. 
Jackson,  126  Ind.  282,  26  N.  E.  62;  Cochran  v.  Ward,  5  Ind.  App.  89,  31  N.  E. 
581,  51  Am.  St.  Rep.  229. 


94  STATUTE  OF  FRAUDS.  (Ch.  4 

the  purchase  money  or  other  consideration,^'*  or  made  valuable  im- 
provements thereon/ ^^  equity  will  enforce  performance  on  the  part 
of  the  vendor.  "The  whole  doctrine  rests  upon  the  principle  of  fraud, 
and  proceeds  upon  the  idea  that  the  party  has  so  changed  his  situa- 
tion, on  the  faith  of  the  oral  agreement,  that  it  would  be  a  fraud' 
upon  him  to  permit  the  other  party  to  defeat  the  agreement  by  set- 
ting up  the  statute.  *  *  *  The  change  of  situation  necessary  to 
create  this  equitable  estoppel  must,  of  course,  have  been  made  in 
reliance  upon,  and  in  pursuance  of,  the  oral  agreement,  and  so  con- 
nected with  the  performance  of  the  contract  that,  from  the  nature 
of  the  case,  the  defendant  should  understand  it  was  done  in  reliance 
upon  his  agreement."  ^'®  Possession,  to  constitute  such  part  per- 
formance as  to  warrant  the  interference  of  a  court  of  equity,  must 
have  been  under  the  contract,^'^  and  it  must  be  accompanied  by 
payment  of  the  purchase  money,  or  by  valuable  and  permanent  im- 
provements. Mere  possession  alone  is  not  enough.^**  Nor  are  im- 
provements without  possession  sufficient.^^® 


184  Bechtel  v.  Coue,  52  Md.  698;  Jamison  v.  Dimock,  95  Pa.  52;  Carney  v. 
Caruey,  95  Mo.  353,  8  S.  W.  729;  Watts  v.  Witt,  39  S.  C.  356,  17  S.  E.  822; 
Fitzsimmons  v.  Allen's  Adm'r,  39  111.  440;  Lipp  v.  Hunt,  25  Neb.  91,  41  N. 
W.  143;  Gould  v.  Banking  Co.,  136  111.  60,  26  N.  E.  497;  Denlar  v.  Hile,  123- 
Ind.  68,  24  N.  E.  170.     Contra,  Bradley  v.  Owsley,  74  Tex.  69,  11  S.  W.  1052. 

13  5  Potter  V.  Jacobs,  111  Mass.  32;  Barrett  v.  Forney,  82  Va.  269;  Cutsinger 
V.  Ballard,  115  Ind.  93,  17  N.  E.  206;  Hunter  v.  Mills,  29  S.  C.  72,  6  S.  E. 
907;  Wallace  v.  Scoggin,  17  Or.  476,  21  Pac.  558;  Holmden  v.  Janes,  42  Kan. 
758,  21  Pac.  591;  Moulton  v.  Harris,  94  Cal.  420,  29  Pac.  706;  Mudgett  v. 
Clay,  5  Wash.  103,  31  Pac.  103;  Hunkins  v.  Hunkins,  65  N.  H.  95,  18  Atl.  655; 
Union  Pac.  E.  Co.  v.  McAlpine,  129  U.  S.  305,  9  Sup.  Ct.  286,  32  L.  Ed.  673; 
Brown  v.  Sutton,  129  U.  S.  238,  9  Sup.  Ct.  273,  32  L.  Ed.  664;  McWhinne  v. 
Martin,  77  Wis.  182.  46  N.  W.  118;  Morrison  v.  Herrick,  27  111.  App.  339,  af- 
firmed in  130  111.  631,  22  N.  E.  537;  Townsend  v.  Vanderwerker,  160  U.  S. 
171,  16  Sup.  Ct.  258,  40  L.  Ed.  383;  Anderson  v.  Brewing  Co.,  173  111.  213,  50 
N.  E.  655;    Low  v.  Low,  173  Mass.  580,  54  N.  E.  257. 

136  Brown  v.  Hoag,  35  Minn.  373,  29  N.  W.  135,  per  Mitchell,  J.  See,  also, 
Caton  V.  Caton,  L.  R.  1  Ch,  App.  147;  Semmes  v.  Worthington,  38  Md.  298; 
Wheeler  v.  Reynolds,  66  N.  Y.  227;  Sullivan  v.  O'Neal,  66  Tex.  433,  1  S.  W. 
185;   Purcell  v.  Miner,  4  Wall.  513;   Clark  v.  Clark,  122  111.  388,  13  N.  E.  553. 

137  Jacobs  V.  Railroad  Co.,  8  Cush.  (Mass.)  224;  Purcell  v.  Miner,  4  Wall. 
(U.  S.)  513,  18  L  Ed.  435;  Ducie  v.  Ford,  138  U.  S.  587,  11  Sup.  Ct.  417,  34 
L.  Ed.  1091;  Green  v.  Groves,  109  Ind.  519,  10  N.  E.  401;  Miller  v.  Ball,  64 
N.  Y.,  at  page  292;  Birkbeck  v.  Kelly  (Pa.  Sup.)  9  Atl.  313;  Boozer  v.  Teague, 
27  S.  C.  348,  3  S.  E.  551;  Mahana  v.  Blunt,  20  Iowa,  142;  Messmore  v.  Cun- 
ningham, 78  Mich.  023,  44  N.  W.  145;  Pawlak  v.  Granowski,  54  Minn.  130, 
55  N.  W.  831;  Clark  v.  Clark,  122  111.  388,  13  N.  E.  553;  Foster  v.  Maginnis, 
89  Cal.  264,  26  Pac.  828.    See,  also,  cases  cited  supra,  note  133. 

138  Glass  v.  Hulbert,  102  Mass.,  at  page  32,  3  Am.  Rep.  418;  Hibbert  v. 
Aylott's  Heirs,  52  Tex.  530;    Miller  v.  Ball,  64  N.  Y.,  at  page  292;    Dougan  v. 


188  Wooldridge  v.  Hancock,  70  Tex.  18,  6  S.  W.  818. 


§§  60-51)  EFFECT   OF   NONCOMPLIANCE.  95 

A  few  of  the  courts  have  refused  to  recognize  the  doctrine  that 
part  performance  takes  a  contract  out  of  the  statute/*"  but  the  doc- 
trine is  supported  both  in  England  and  in  this  country  by  an  over- 
whelming weight  of  authority. 

Compelling  Execution  of  Writing. 

In  some  states,  courts  of  equity,  in  the  exercise  of  their  Jurisdic- 
tion to  grant  relief  in  case  of  fraud,  have  compelled  the  execution 
of  a  written  contract  where  the  party  sought  to  be  charged  had 
agreed  to  execute  it,  but  afterwards  fraudulently  refused  to  keep  his 
promise. ^*^  Other  courts  hold  that  refusal  to  execute  a  written  con- 
tract as  agreed  is  not  such  a  fraud  as  will  take  the  contract  out  of 
the  statute.^" 

Part  Performance — Recovery  quasi  ex  Contractu. 

Where  one  of  the  parties  to  a  verbal  contract  within  the  statute  of 
frauds  pays  money  or  performs  services  thereunder,  of  which  the 
other  party  has  received  the  benefit,  the  law  implies  a  promise,  or 
rather  imposes  a  duty  upon  him,  to  pay  for  the  benefit  conferred; 
and  an  action  may  be  maintained  against  him,  not  upon  the  contract, 
but  upon  the  appropriate  common  counts  in  assumpsit,  the  measure 
of  recovery  being,  not  the  agreed  price,  but  the  value  of  the  benefit 
conferred.^** 

Blocher,  24  Pa.  28;  Moore  v.  Small,  19  Pa.  461;  Galbreath  v.  Galbreath,  5 
Watts  (Pa.)  146;  Ann  Berta  Lodge  v.  Leverton,  42  Tex.,  at  page  26.  But  see 
Andrew  v.  Babcock,  63  Conn.  109,  26  Atl.  715;  Kennemore  v.  Kennemore, 
26  S.  C.  251,  1  S.  E.  881. 

140  Dunn  V.  Moore,  38  N.  C.  364;  Ridley  v.  McNairy,  2  Humpb.  (Tenn.)  174; 
Beaman  v.  Buck,  9  Smedes  &  M.  (Miss.)  207;  Pass  v.  Brooks,  125  N.  C.  129, 
34  S.  E.  228. 

141  Equitable  Gasligbt  Co.  v.  Manufacturing  Co.,  63  Md.  285;  Graft  v. 
Loucks,  138  Pa.  453,  21  Atl.  203;  Baker  v.  Baker,  2  S.  D.  261,  49  N.  W.  1064, 
39  Am.  St.  Rep.  776;  McDonald  v.  Youngblutb  (C.  C.)  46  Fed.  836.  In  Iowa 
tbe  court  decreed  specific  performance  of  a  parol  agreement  to  assign  a  pat- 
ent rigbt,  tbougb  Rev.  St  U.  S.  §  4898  [U.  S.  Comp.  St.  1901,  p.  3387],  requires 
assignments  to  be  in  writing.  Searle  v.  Hill,  73  Iowa,  367,  35  N.  W.  490,  5  Am. 
St.  Rep.  688. 

142  Caylor  v.  Roe,  99  Ind.  1;  Jackson  v.  Myers,  120  Ind.  504,  22  N.  E.  90, 
and  23  N.  E.  86;  Feeney  v.  Howard,  79  Cal.  525,  21  Pac.  984,  4  L.  R.  A.  826, 
12  Am.  St.  Rep.  162.    And  see  Glass  v.  Ilulbert,  102  Mass.  30,  3  Am.  Rep.  418. 

143  Wbipple  V.  Parker,  29  Micb.  369;  Wbitaker  v.  Burrows,  71  Hun,  478,  24 
N.  Y.  Supp.  1011;  Patten  v.  Hicks,  43  Cal.  509.  And  see  cases  cited  in  fol- 
lowing note.  As  to  recovery  of  money  or  otber  consideration  paid,  see  Welcb 
V.  Darling,  59  Vt.  136,  7  Atl.  547;  Herrick  v.  Newell,  49  Minn.  198,  51  N.  W. 
819;  Scbroeder  v.  Loeber,  75  Md.  195,  23  Atl.  579,  and  24  Atl.  226;  Wortb  v. 
Patton,  5  Ind.  App.  272,  31  N.  E.  1130;  Nelson  v.  Improvement  Co.,  96  Ala. 
515,  11  Soutb.  695,  38  Am.  St.  Rep.  116.  Recovery  for  services  rendered. 
Cadman  v.  Markle,  76  Micb.  448,  43  N.  W.  315,  5  L.  R.  A.  707;  Sprague  v. 
Haines,  68  Tex.  215,  4  S.  W.  371;  Stevens  v.  Lee,  70  Tex.  279,  8  S.  W.  40; 
Hartwell  y.  Young,  67  Hun,  472,  22  N.  Y.  Supp.  486;    Jeffery  v.  Walker,  72 


96  STATUTE  OP  FRAUDS.  (Ch.  4 

The  Contract  as  a  Defense. 

The  provision  that  "no  action  shall  be  brought"  on  verbal  contracts 
within  the  statute  not  only  prevents  suit  on  such  a  contract,  but  pre- 
vents such  a  contract  from  being  set  up  as  a  defense ;  as  for  instance, 
in  an  action  on  the  quantum  meruit  by  a  party  who  has  partly  per- 
formed under  it.^** 

Who  may  Plead  the  Statute. 

The  benefits  of  the  statute  of  frauds  are  personal,  and  it  can  only  be 
set  up  by  the  parties  to  the  contract  or  their  privies.^ *^ 

Waiver  of  Statute. 

A  contract  not  put  in  writing,  as  required  by  the  statute  of  frauds, 
not  being  void,  but  simply  unenforceable  by  suit,  the  failure  of  the  con- 
tract to  comply  with  the  statute  may  be  waived  by  the  party  to  be 
charged.^*®  It  is  generally  held  to  have  been  waived  if  not  pleaded  as 
a  defense,  unless  the  complaint  shows  that  the  case  is  within  the 
statute.^  *^ 

Hun,  G28,  25  N.  T.  Supp.  161;  Wonsettler  v.  Lee,  40  Kan.  367,  19  Pac.  862; 
Springer  v.  Bien  (Com.  PI.  N.  Y.)  10  N.  Y.  Supp.  530;  Scboonover  v.  Vaclion, 
121  Ind.  3,  22  N.  E.  777;  Miller  v.  Eldredge,  126  Ind.  461,  27  N.  E.  132;  Tag- 
gart  V.  Tevanny,  1  Ind.  App.  339,  27  N.  E.  511;  Koch  v.  Williams,  82  Wis. 
186,  52  N.  W.  257.  In  Minnesota,  inconsistently,  the  agreement  fixes  the 
value  of  the  services  rendered  under  it.  Kriger  v.  Leppel,  42  Minn.  6,  43 
N.  W.  4M;  Spinney  v.  Hill,  81  Minn.  316,  84  N.  W.  116.  Recovery  of  expenses 
incurred,  or  money  paid  for  the  use  of  the  other  party.  Sprague  v.  Haines, 
68  Tex.  215,  4  S.  W.  371.  Recovery  for  use  and  occupancy  of  land  from  one 
-v\-ho  has  used  it  under  a  parol  agreement  which  he  refuses  to  carry  out. 
Walker  v.  Shackelford,  49  Ark.  503,  5  S.  W.  887,  4  Am.  St.  Rep.  61;  post,  p. 
552. 

144  KING  V.  WELCOME,  5  Gray  (Mass.)  41;  Baker  v.  Lauterbach,  68  Md. 
64,  11  AtJ.  704;  McGinnis  v.  Fernandes,  126  111.  228,  19  N.  E.  44;  Leman  v. 
Randall,  124  Mich.  687,  83  N.  W.  994. 

145  Cahill  V.  Bigelow,  18  Pick.  (Mass.)  369;  Mewburn's  Heu-s  v.  Bass,  82 
Ala.  622,  2  South.  520;  Briggs  v.  United  States,  143  U.  S.  346,  12  Sup.  Ct. 
391,  36  L.  Ed.  180;  Dailey  v.  Kinsler,  35  Neb.  835,  53  N.  W.  973;  Best  v. 
Davis,  44  111.  App.  624;  Grundies  v.  Kelso,  41  111.  App.  200;  Houser  v.  Lament, 
55  Pa.  311,  93  Am.  Dec.  755;  Book  v.  Mining  Co.  (C.  C.)  58  Fed.  106;  Bullion 
&  Exch.  Bank  v.  Otto  (C.  C.)  59  Fed.  256;  Chicago  Dock  Co.  v.  Kinzie,  49  111. 
289;  King  v.  Bushnell,  121  111.  656,  13  N.  E.  245;  St.  Louis,  K.  &  N.  W.  R.  Co. 
v.  Clark,  121  Mo.  169,  25  S.  W.  192,  26  L.  R.  A.  751. 

14  0  Montgomery  v.  Edwards,  46  Vt.  151,  14  Am.  Rep.  618;  Cosand  v.  Bun- 
ker, 2  S.  D.  294,  50  N.  W.  84;  Westfall  v.  Parsons,  16  Barb.  (N.  Y.)  645; 
Nunez  v.  Morgan,  77  Cal.  427,  19  Pac.  753;  Brakefield  v.  Anderson,  87  Tenn. 
206,  10  S.  W.  360;  Sarwoll  v.  Sowles,  72  Vt.  270,  48  Atl.  11,  82  Am.  St.  Rep. 
943 

147  Wells  V.  Monihan,  129  N.  T.  161,  29  N.  E.  232;  McClure  v.  OMch,  118 
111.  320,  8  N.  E.  784;  Cosand  v.  Bunker,  2  S.  D.  294,  50  N.  W.  84;  Espalla  v. 
Wilson,  86  Ala.  487,  5  South.  867;  Cozart  v.  Land  Co.,  113  N.  C.  294,  18  S.  E. 
337;  Hamill  v.  Hall,  4  Colo.  App.  290,  35  Pac.  927.  The  statute  must  be  af- 
firmatively pleaded.     Birchell  v.  Neaster,  36  Ohio  St  331;    Crane  v.  Powell, 


§§  52-55)  CONTRACTS   WITHIN    SECTION    17.  97 

Conflict  of  Laws. 

By  the  rules  of  private  international  law  the  validity  of  a  contract,  so 
far  as  regards  its  formation,  is  determined  by  the  lex  loci  contractus ; 
but  the  procedure,  including  the  proof,  in  an  action  on  a  contract  is 
'  j^^  governed  by  the  lex  fori.  In  a  leading  English  case,  in  which  action 
^  was  brought  in  England  on  a  verbal  contract  made  in  France,  and  which 
was  valid  and  enforceable  by  the  French  law,  it  was  held  that,  as  the 
statute  of  frauds  did  not  go  to  the  existence  of  the  contract,  but  affected 
the  procedure  only,  and  prevented  proof,  the  statute  of  frauds  gov- 
erned the  case,  and  prevented  a  recovery.^*^  This  case  has  been  fol- 
lowed by  the  courts  of  some  of  our  states,  and  has  been  approved  by 
the  federal  supreme  court.^*®  The  courts  of  many  other  states,  how- 
ever, have  held  the  contrary,  and  will  enforce  a  contract  so  long  as  it  is 
not  within  the  statute  of  frauds  of  the  state  in  which  it  was  made,  and, 
on  the  other  hand,  will  refuse  to  enforce  a  contract  which  is  not  within 
their  own  statute,  but  is  within  the  statute  of  the  state  in  which  it  was 
made.^''" 

SAME— CONTRACTS   "WITHIN    SECTION    17. 

52.   IN    GENERAX.    The    seventeentli    section    of   the    Eaiglish    statute, 
which   has   been   substantially   followed   in   most   of   the    states,    , 
enacts  that   "no   contract  for  the   sale   of   any  goods,   wares  or     ^ 
merchandises,  for  the  price  of  £10  sterling,  or  upwards,  shall    •^'^ 
be  allowed  to  be  good,  except  tC(_c^^. 

(a)  "The  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually      ,^  . 

receive  the  same,  /v 

(b)  "Or  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay-   /.^ij^  ' 

ment,  ^ 

(c)  "Or  that  some  note  or  memorandum  in  w^riting  of  the  said  bar- 

gain be  made  and  signed  by  the  parties  to  be  charged  by  such 
contract,  or  their  agents  thereunto  lawfully  authorized." 

139  N.  Y.  379,  34  N.  E.  911;  Citty  v.  Manufacturing  Co.,  93  Tenn.  276,  24  S. 
W.  121,  42  Am.  St.  Rep.  919.  But  some  courts  hold  that  it  may  be  raised 
under  a  general  denial.  Fountaine  v.  Bush,  40  Minn.  141,  46  N.  W.  465, 
12  Am.  St  Rep.  722;  Hurt  v.  Ford,  142  Mo.  283,  44  S.  W.  228,  41  L.  R.  A.  823; 
Barrett  v.  McAllister,  33  W.  Va.  738,  11  S.  E.  220.  If  the  answer  admits  the 
contract,  the  statute  must  be  pleaded.  Iverson  v.  Clrkel,  56  Minn.  299,  57  N. 
W.  800;   Barrett  v.  McAllister,  supra. 

14  8  LeroiLx;  v.  Brown,  12  C.  B.  801. 

1*8  Downer  v.  Chesebrough,  3G  Ck)nn.  39,  4  Am.  Rep.  29;  Hunt  v.  Jones, 
12  R.  I.  265,  34  Am.  Rep.  635;  Pritchard  v.  Norton,  106  U.  S.  134,  1  Sup.  Ct. 
102,  27  L.  Ed.  104;  Heaton  v.  Eldridge,  56  Ohio  St.  87,  46  N.  E.  638,  36  L.  R. 
A.  817,  60  Am.  St.  Rep.  737;    Buhl  v.  Stephens  (C.  C.)  84  Fed.  922. 

180  Decosta  v.  Davis,  24  N.  J.  Liiw,  319;  Cochran  v.  Ward,  5  Ind.  App.  89, 
29  N.  E.  795,  51  Am.  St.  Rep.  229;  Denny  v.  Williams,  5  Allen  (Mass.)  1;  Alls- 
house  V.  Ramsay,  6  Whart.  (Pa.)  331,  37  Am.  Dec.  417;  Houghtaling  v.  Ball, 
20  Mo.  563;  Low  v.  Andrews,  1  Story,  38,  Fed.  Cas.  No.  8,559;  Miller  T.  Wil- 
son, 146  111.  523,  34  N.  E.  1111,  37  Am.  St.  Rep.  186. 
Claek  Cont.  (2d  Ed.) — 7 


98  STATUTE  OF  FRAUDS.  (Ch.  4 

53.  EXECUTORY  SALE.    The  section  applies  to  executory  as  well  as 

to  executed  contracts. 

54.  "WORK  AND   LABOR.    It  does  not   apply  to   contracts  for  work, 

labor,  and  materials,  but  a  contract  is  not  deemed  to  be  one 
for  w^ork,  labor,   and  materials, 

(a)  In  England  and  some  states,  xtrliere  it  contemplates  the  ultimate 

transfer  of  the  property  in  a  chattel  for  a  price,  although  the 
chattel  is  to  be  made. 

(b)  In  most  jurisdictions,  \irhere  the   chattel,  although  to  be  made, 

is  one  w^hich  the  seller  ordinarily  makes  and  sells  in  the  course 
of  his  business.  It  is  otherw^ise  if  it  is  one  \irhich  must  be  spe- 
cially manufactured. 

(c)  In  New  York  and  some  other  states,  xchere  the  chattel  is  in  exist- 

ence, although  the  seller  is  to  adapt  it  to  the  use  of  the  buyer. 


SAME— WHAT  ARE  GOODS,  WARES,  AND  MERCHANDISES. 

55.    "Goods,  wares,  and  merchandises"  comprehend: 

(a)  All  corporeal  movable  property. 

(b)  In  the  United  States,  generally  (but  not  in  England),  incorporeal 

property,  such  as  shares,  bonds,  notes,  etc. 

(c)  Fructus  naturales  and  fructus  industriales,  where  the  ownership 

is  not  to  pass  until  after  severance. 

(d)  Fructus  industriales   (perhaps)   also  iirhere  the  ovrnership  is   to 

pass  before  severance. 

■  • 

The  treatment  of  this  section  belongs  more  properly  to  a  work  on  the 
law  of  sales,  and  the  rules  governing  its  application  will  be  very  briefly 
indicated. ^^^ 

Although  there  was  doubt  in  England,  to  remove  which  a  special 
statute  was  enacted,  it  has  been  held  with  us  that  the  statute  applies 
not  only  to  executed_contracts  of  sale,  but  also  to  executory  contracts, 
as,  for  instance,  where  the  goods  are  not  specifiedTbut  are  to  be  after- 
wards obtained  by  the  seller,  or  selected  and  set  apart  to  the  pur- 
chaser.^^^ 

It  also  applies  to  sales  at  public  auction  as  well  as  private  sales. ^'^^ 

A  contract  for  the  sale  of  goods  is  not  taken  out  of  the  operation  of 
the  statute  by  the  fact  that  there  are  other  stipulations  to  which  the 
statute  does  not  apply.^"^*  The  contract  must  be  for  the  sale  of  goods, 
and  a  promise,  therefore,  by  the  seller  of  bonds  or  other  goods  to  take 
them  back  is  not  within  the  statute.     It  is  a  promise  to  rescind  the 

161  See  Tiffany,  Sales,  35-Sl. 

182  Bennett  v.  Hull,  10  Johns.  (N.  Y.)  364;  Lamb  v.  Crafts,  12  Mete.  (Mass.) 
353;  Edwards  v.  Railroad  Co.,  48  Me.  379;  Franklin  v.  Long,  7  Gill  &  J. 
(Md.)  407;   Cason  v.  Cheely,  6  Ga.  554;    Sawyer  v.  Ware,  3G  Ala.  676. 

163  Singstack's  Ex'rs  v.  Harding,  4  Har.  &  J.  (Md.)  1S6,  7  Am.  Dec.  669. 
See,  also,  ante,  p.  90. 

164  Hanson  v.  Marsh,  40  Minn.  1,  40  N.  W.  841. 


§§  52-55)      WHAT  ARE   GOODS,  WARES,  AND   MERCHANDISES.  99 

sale,  not  a  promise  to  sell/^°  So,  also,  a  contract  by  which  one  of 
the  parties  is  to  purchase  goods  for  the  other  at  a  certain  price,  the 
latter  agreeing  to  receive  and  pay  for  them  on  delivery,  is  a  contract 
of  agency,  and  not  of  bargain  and  sale,  and  is,  therefore,  not  within 
the  statute.^ ^'  Nor  is  an  oral  agreement  for  a  trading  venture,  by 
which  one  party  agrees  to  account  to  the  other  for  half  the  profits  in 
consideration  that  the  other  shall  bear  half  the  losses,  within  the 
statute."^ 

Value. 

In  most  states  the  statute  fixes  the  value  of  the  goods  under  this 
section  at  $50;  but  in  some  the  value  is  fixed  at  a  greater  or  less 
amount,  and  in  two,  at  least,  all  contracts  of  sale  are  within  the  statute. 

Where  several  articles,  all  of  which  exceed,  but  no  one  of  which  alone 
reaches,  the  value  specified  in  the  statute,  are  purchased  independently 
at  different  times,  each  purchase  is  a  separate  contract,  and  is  not 
within  the  statute ;  but  it  is  otherwise  if  they  are  all  purchased  at  the 
same  time,  in  one  and  the  same  transaction.^^^ 

Contracts  for  Work,  Labor,  and  Materials. 

A  difficult  question  has  arisen  where  labor  has  to  be  expended  on  the- 
thing  sold  before  the  contract  is  executed,  and  the  property  transferred, 
as  to  whether  the  contract  is  for  the  sale  of  goods  within  the  seven- ' 
teenth  section,  or  for  work  and  labor,  and  therefore  enforceable  if  to  be 
performed  within  a  year,  so  as  not  to  be  within  the  fourth  section.     The* 
decisions  on  this  question  are  not  in  accord. 

In  England  it  is  held  that  the  contract  is  for  a  sale  of  goods  if  it ' 
contemplates  the  viltimate  transfer  of  the  property  in  a  chattel.  "If  the 
contract  be  such  that  it  will  result  in  the  sale  of  a  chattel,"  it  was  said 
in  the  leading  English  case,  "the  proper  form  of  action,  if  the  employer 
refuses  to  accept  the  article  when  made,  would  be  for  not  accepting. 
But  if  the  work  and  labor  be  bestowed  in  such  a  manner  as  that  the 
result  would  not  be  anything  which  could  properly  be  said  to  be  the 
subject  of  sale,  then  an  action  for  work  and  labor  would  be  the  proper 
remedy."  ^'^^ 

The  courts  of  this  country  generally  repudiate  this  doctrine/*"  but 
they  differ  as  to  what  they  deem  the  correct  rule. 

155  Johnston  v.  Trask,  116  N.  Y.  13G,  22  N.  E.  377,  5  L.  R.  A.  630,  15  Am.  St 
Rep.  394. 

156  Hatch  V.  McBrien,  83  Mich,  159,  47  N.  W.  214. 

167  Coleman  v.  Eyre,  45  N.  Y.  41;  Green  v.  Brookins,  23  Mich.  48,  9  Am. 
Rep.  74. 

168  BALDEY  V.  PARKER,  2  Barn.  &  C.  37. 

169  LEE  V.  GRIFFIN,  1  Best  &  S.  272. 

160  But  see  Pratt  v.  Miller,  109  Mo.  78,  18  S.  W.  965,  32  Am.  St.  Rep.  656; 
Burrell  v.  Highleyman,  33  Mo.  App.  183.  In  some  states  the  statute  expressly 
excepts  goods  to  be  manufactured.  Flynn  v.  Dougherty,  91  Cal.  6U9,  27  Pac. 
1080,  14  L.  R.  A.  230. 


100  STATUTE  OF   FRAUDS.  (Ch.  4 

In  some  states  it  is  held  that  a  contract  for  the  sale  of  something 
which  the  seller  ordinarily  makes  and  sells  in  the  course  of  his  business 
is  a  contract  for  the  sale  of  goods,  and  not  for  work  and"  labor,  though 
he  may  not  have  the  goods  on  hand,  but  may  have  to  manufacture  them ; 
but,  if  the  goods  are  not  such  as  he  ordinarily  makes,  and  have  to  be 
specially  manufactured  for  the  buyer,  the  contract  is  for  work  and 
labor.i^'i 

In  other  states  a  distinction  is  made  between  goods  in  existence  when 
the  contract  is  made  and  goods  that  have  to  be  manufactured,  and  it 
is  held  that  when  the  chattel  is  in  existence  the  contract  should  be 
deemed  one  of  sale,  even  though  it  may  have  been  ordered  from  a 
seller  who  is  to  do  some  work  upon  it  to  adapt  it  to  the  uses  of  the 
purchaser.  Such  a  rule  makes  but  a  single  distinction,  and  that  is 
between  existing  and  nonexisting  chattels.^®* 

In  some  states  this  question  is  regulated  by  special  provisions  of  the 
statute.^" 

Goods,  Wares,  and  Merchandises. 

In  England  the  term  "goods,  wares,  and  merchandises"  has  been 
limited  to  corporeal  movable  property,  and  is  held  not  to  include  shares 
of  stock,  choses  in  action,  and  other  incorporeal  rights  and  property,^ ^* 
and  the  courts  of  some  of  our  states  have  taken  the  same  view.^®"*  In 
other  states  it  is  held  that  shares  of  stock,  promissory  notes,  bonds,  and 
the  like,  are  "goods,  wares,  and  merchandise."  ^^*     It  has  also  been 


161  GODDARD  Y.  BINNEY,  115  Mass.  450,  15  Am.  Rep.  112;  Lamb  v. 
Crafts,  12  Mete.  (Mass.)  353;  Mixer  v.  Howartli,  21  Pick.  (Mass.)  205,  32 
Am.  Dec.  256;  Atwater  v.  Hough,  29  Conn.  509,  79  Am.  Dec.  229;  Crocliett 
V.  Scribner,  64  Me.  447;  Edwards  v.  Railroad  Co.,  48  Me.  379;  Finney  v.  Ap- 
gar,  31  N.  J.  Law,  267;  Central  Lath.  &  E.  Co.  v.  Moore,  75  Wis.  170,  43  N. 
W.  1124,  6  L  R.  A.  788,  17  Am.  St.  Rep.  186;  Brown  &  Haywood  Co.  v. 
Wunder,  64  Minn.  450,  67  N.  W.  357,  32  L.  R.  A,  593.  See,  also,  Mechanical 
Boiler  Cleaner  Co.  v.  Kellner,  62  N.  J.  Law,  544,  43  Atl.  599. 

162  PARSON  V.  LOUCKS,  48  N.  T.  17,  8  Am.  Rep.  517;  Cooke  v.  Millard, 
65  N.  Y.  352,  22  Am.  Rep.  619;  Deal  v.  Maxwell,  51  N.  Y.  652;  Higgins  v. 
Murray,  73  N.  Y.  252;  Alfred  Shrimpton  &  Sons  v.  Dworsky,  2  Misc.  Rep.  123, 
2i  N.  Y.  Supp.  461;  Eichelberger  v.  McCauley,  5  Har.  &  J.  (Md.)  213,  9  Am. 
Dec.  514;  Rentch  v.  Long,  27  Md.  188.  A  contract  to  paint  a  portrait  is  not 
■within  tlie  statute.    Turner  v.  Mason,  65  Mich.  662,  32  N.  W.  846. 

163  Mlgbell  V.  Dougherty  (Iowa)  53  N.  W.  402. 

164  Humble  v.  Mitchell,  11  Adol.  &  E.  205.  And  see  Pickering  v.  Appleby, 
Comyn,  354. 

16  5  Whlttemore  v.  Gibbs,  24  N.  H.  484;  Vawter  v.  Griffin,  40  Ind.  593;  Webb 
V.  Railroad  Co.,  77  Md.  92,  26  Atl.  113,  39  Am.  St.  Rep.  396. 

i66Tisdale  v.  Harris,  20  Pick.  (Mass.)  9;  Boardman  v.  Cutter,  128  Mass. 
388;  Baldwin  v.  Williams,  3  Mete.  (Mass.)  365;  Gooch  v.  Holmes,  41  Me.  523; 
Hudson  V.  Weir,  29  Ala.  294;  Pray  v.  Mitchell,  00  Me.  430;  North  v.  Forest, 
15  Conn.  400;  Hinchman  y.  Lincoln,  124  U.  S.  38,  8  Sup.  Ct.  369.  31  L.  Ed.  337; 
Bernhardt  y.  Walls,  29  Mo.  App.  206;   GREENWOOD  v.  LAW,  55  N.  J.  Law, 


§  56)  ACCEPTANCE   AND  RECEIPT.  101 

held  that  a  sale  of  book  accounts/®''  or  of  land  scrip,^'*  is  within  the 
statute,  but  not  an  agreement  for  sale  of  an  interest  in  an  invention 
before  letters  patent  are  obtained/®"  In  some  states  the  statute  uses 
the  words  "personal  property,"  and  these  would,  of  course,  apply  to 
choses  in  action,^^®  In  other  states  the  statute  expressly  mentions 
choses  in  action. 

As  we  have  already  seen,  "fructus  industriales"  are  not  an  interest 
in  land,  within  the  fourth  section.^ ^^  They  are  chattels,  but  it  is  an 
open  question  whether  they  are  "goods,  wares,  and  merchandises," 
within  the  seventeenth  section.^'' ^  So,  also,  a  sale  of  "fructus  natu- 
rales,"  or  the  natural  growth  of  land,  not  being  of  an  interest  in  land 
where  title  is  not  to  pass  until  after  severance,  is  regarded  as  within 
the  seventeenth  section.  Some  courts,  indeed,  hold  this  to  be  so, 
though  title  is  to  pass  before  severance.^^®  The  question,  however,  is 
intricate,  and  the  authorities  conflicting,  and  it  cannot  be  properly 
treated  at  any  length  in  an  elementary  work  on  contracts. 


SAME—ACCEPTANCE  AND  RECEIPT.  X 

56.   To  satisfy  this  exception  there  must  be  both 

(a)  Acceptance,  ^n^hich  in  this  country  means  assent  by  the  buyer  that 

the  goods  are  to  be  taken  by  him  in  performajdce  of  the  con- 
tract, and 

(b)  Receipt,  or  the  taking  of  possession  of  the  goodis  by  the  buyer 

with  the  seller's  consent,  either  by  actual  delivery  or  by  agree- 
ment. « 

Acceptance  and  receipt  are  distinct,  and  to  satisfy  this  exception  both 
are  essential.^''*     Acceptance  may  precede  receipt,^^°  or  vice  versa,^^® 

168,  26  Atl.  134,  19  L.  R.  A.  688;    Meehan  v.  Sharp,  151  Mass.  564,  24  N.  B. 
907. 

187  Walker  v.   Supple,  54  Ga.   178. 

168  Smith  V.  Bouck,  33  Wis.  19. 

169  Somerby  v.  Buntin,  118  Mass.  279,  19  Am.  Rep.  459;  Blakeney  v.  Goode, 
30  Ohio  St  350.    But  see  Jones  v.  Reynolds,  120  N.  Y.  213,  24  N,  E.  279. 

iTo  Southern  Life  Ins.  &  Trust  Co.  v.  Cole,  4  Fla.  359. 

iTi  Ante,  p.  75. 

172  See  Tiffany,  Sales,  48,  and  cases  cited.  < 

ITS  Ante,  p.  7a 

1T4  Smith  V.  Hudson,  6  Best  &  S.  431;  Caulklns  v,  Hellman,  47  N.  Y.  449,  7 
Am.  Rep.  461;  Cooke  v.  Millard,  65  N.  Y.  352,  367,  22  Am.  Rep.  619;  Maxwell 
V.  Brown,  39  Me.  98,  63  Am.  Dec.  GOo. 

175  CUSACK  V.  ROBINSON,  1  Best  &  S.  299;  Cross  v.  O'Donnell,  44  N.  Y. 
661,  4  Am.  Rep.  721;  Knight  v.  Mann,  118  Mass.  143,  145;  Simpson  v.  Krum- 
dick,  28  Minn.  352,  355,  10  N.  W.  IS. 

176  Beaumont  v.  Brengeri,  5  C.  B.  301;  Garfield  v.  Paris,  96  U.  S.  557,  5G3, 
24  L.  Ed.  821;  Vincent  v.  Germond,  11  Johns.  (N.  Y.)  283;  Jones  v.  Reynolds, 
1:^0  N.  Y.  213,  24  N.  E.  279;   Townseud  v.  Hargraves,  118  Mass.  325,  332. 


'^ 


102  STATUTE   OP   FRAUDS.  (Cb.  4 

and  both  may  be  subsequent  to  the  contract  of  sale.^^''  Their  effect  is 
to  prove  that  there  is  a  contract,  the  terms  of  which  may  then  be  proved 
by  parol.^'^^  Acceptance  and  receipt  of  a  part,  however  small,  is 
sufhcient.^^" 

Acceptance. 

Acceptance,  as  the  meaning  imports,  is  an  assent  by  the  buyer,  meant 
to  be  final,  that  the  goods  are  to  be  taken  by  him  under  and  in  per- 
formance of  the  contract.^ ^°  If  the  contract  is  for  sale  of  specific 
goods,  acceptance  necessarily  takes  place  when  the  contract  is  entered 
■into.^^^  If  the  contract  is  for  sale  of  goods  which  are  not  specific, 
there  can  be  no  acceptance  until  the  seller  has  indicated  what  goods 
he  intends  to  deliver,  and  thereafter  an  acceptance  may  be  shown  by 
the  buyer's  declarations, ^^'^  o/  by  any  dealing  with  them  as  owner.^^^ 
In  England  a  highly  artificial  construction  has  in  the  later  cases  been 
put  upon  "acceptance,"  and  it  is  held  that  any  dealing  with  the  goods 
which  recognizes  a  pre-existing  contract  of  sale  is  an  acceptance,^®*  but 
this  later  construction  has  never  been  adopted  in  the  United  States. 

Actual  Receipt. 

Where  acceptance  is  shown,  a  very  liberal  construction  is  placed  on 
actual  receipt.  Re.cei2t  jmplies  delivery,  and  must  be  with  the  seller's 
consent,  and  with  the  intention  of  transferring  possession  to  the  buyer 
35;  owner.     The  test- is  whether  the  seller  has  parted  with  his  lien 


185 


177  Gault  V.  Brown,  48  N.  H.  183,  188,  2  Am.  Rep.  210 ;  McKnlght  v.  Dun- 
lop,  5  N.  Y.  537,  55  Am.  Dec.  370;  Marsh  v,  Hyde,  3  Gray  (Mass.)  331;  Busb 
V.  Holmes,  53  Me.  417;  McCarthy  v.  Nash,  14  Minn.  127  (Gil.  95). 

178  Tomkinson  v.  Straight,  17  C.  B.  697;  Garfield  v.  Paris,  96  U.  S.  557,  566, 
24  L.  Ed.  821. 

179  Garfield  v.  Paris,  supra;  Damon  v.  Osborn,  1  Pick,  (ilass.)  476,  11  Am. 
Dec.  229. 

180  Caulkins  v.  Hellman,  47  N.  Y.  449,  7  Am.  Rep.  461;  Meehon  v.  Sharp, 
151  Mass.  564,  24  N.  E.  907;  Smith  v.  Fisher,  59  Vt.  53,  7  Atl.  816;  Garfield 
V.  Paris,  96  U.  S.  567,  24  L.  Ed.  821. 

181  Cases  cited  supra,  note  175. 

18  2  Caulkins  v.  Hellman,  47  N.  Y.  449,  7  Am.  Rep.  461;  Shepherd  v.  Pressey, 
32  N.  H.  49;  Schmidt  v.  TQiomas,  75  Wis.  529,  44  N.  W.  771;  Galvin  v.  Mac- 
Kenzie,  21  Or.  184,  27  Pac.  1039.  It  is  sometimes  said  that  mere  words  are 
not  enough,  but  the  cases  in  which  such  statements  occur  generally  involve 
simply  the  proposition  that  they  are  not  enough  to  constitute  acceptance  and 
receipt.  Shindler  v.  Houston,  1  N.  Y.  261,  49  Am.  Dec.  316.  See  Tiffany, 
Sales,  56. 

183  Chaplin  v.  Rogers,  1  East.  195;  Phillips  v.  Ocmulgee  Mills,  55  Ga.  633; 
Bacon  v.  Eccles,  43  Wis.  227,  238;  SULLIVAN  r.  SULLIVAN,  70  Mich.  583,  38 
N.  W.  472. 

184  Page  V.  Morgan,  15  Q.  B.  Div.  228 ;  Taylor  v.  Smith  [1893]  2  Q.  B.  65. 

18B  Phillips  V.  Bristolli,  2  Barn.  &  C.  511;  Safford  v.  McDonough,  120  Mass. 
290;  Marsh  v.  Rouse,  44  N.  Y.  643;  Hinchman  v.  Lincoln,  124  U.  S.  38,  8 
Sup.  Ct.  369,  31  L.  Ed.  337. 


§  66)  ACCEPTANCE   AND    RECEIPT.  103 

When  the  goods  are  to  be  forwarded  to  the  buyer,  if  they  are  carried  by 
the  seller's  servant  or  agent,  there  is  no  transfer  of  possession  while 
they  remain  in  his  hands;  ^*"'  but  if  they  are  forwarded  by  a  carrier 
designated  by  the  buyer,  an  actual  receipt  takes  place  when  they  are 
delivered  to  him  for  carriage;  ^^^  and  if  they  are  forwarded  by  com- 
mon carrier,  he,  in  the  absence  of  special  agreement,  is  the  agent  of 
the  buyer  and  the  result  is  the  same.^^*  The  receipt  of  the  goods 
by  the  carrier  in  such  cases,  on  the  other  hand,  is  not  an  acceptance, 
such  an  agent  having  authority  only  to  receive,  and  not  to  accept,^ *^ 

The  possession  of  the  goods  may  be  transferred,  and  an  actual  receipt 
take  place  by  agreement,  without  physical  delivery.  An  actual  receipt 
takes  place  by  agreement :  (i)  When  the  goods  are  in  the  actual  pos- 
session of  the  seller,  if  he  becomes  bailee  of  the  goods  for  the  buyer;  ^^^ 
(2)  when  the  goods  are  in  the  custody  of  the  buyer,  as  bailee  of  the 
seller,  if  with  the  consent  of  the  seller  he  ceases  to  hold  as  bailee,  and 
holds  them  as  owner;  ^^^  (3)  when  the  goods  are  in  the  custody  of  a 
third  person  as  bailee  of  the  seller,  if  such  third  person,  with  the  con- 
sent of  the  seller  and  the  buyer,  becomes  bailee  of  the  buyer ;  ^"^  and  (4) 
when  the  goods  are  not  in  the  custody  of  any  person,  as  timber  at  a 
public  wharf,  or  logs  floating  in  a  river,  and  the  buyer  and  the  seller 
agree  that  the  possession  is  transferred.^ ^^ 

186  Agnew  v.  Dumas,  64  Vt.  147,  23  Atl.  634;   Gray  v.  Gary,  9  Daly,  363. 

187  Bullock  V.  Tscliergi,  4  McCrary,  184,  13  Fed.  345;  Cross  v.  O'Donnell, 
44  N.  Y.  661,  4  Am.  Rep.  721.    See  cases  infra,  note  193. 

188  Wait  V.  Baker,  2  Ex.  1;  Wilcox  Silver  Plate  Go.  v.  Green,  72  N.  Y.  17 > 
Sarbecker  v.  State,  65  Wis.  171,  26  N.  W.  541,  56  Am.  Rep.  624. 

189  Hanson  v.  Armitage,  5  Barn.  &  Aid.  557 ;  Hunt  v.  Hecbt,  8  Ex.  814;  Allard 
V.  Greasert,  61  N.  Y.  1,  5 ;  Fontaine  v.  Bush,  40  Minn.  141,  41  N.  W.  465,  12 
Am.  St.  Rep.  722. 

190  Elmore  v.  Stone,  1  Taunt.  458;  Beaumont  v.  Brengeri,  5  G.  B.  301; 
Green  v.  Merriam,  28  Vt.  801;  Rodgers  v.  Jones,  129  Mass.  420;  Webster  v. 
Anderson,  42  Mich.  554,  4  N.  W.  288,  36  Am.  Rep.  452. 

191  Edan  v.  Dudfield,  1  Q.  B.  306 ;  Lillywhite  v.  Devereux,  15  Mees.  &  W.  285  ; 
Snider  v.  Thrall,  56  Wis.  674,  14  N.  W.  814. 

192  Bentall  v.  Burn,  B.  &  O.  423;  Farina  v.  Home,  16  Mees.  &  W.  119;  Town- 
send  V.  Hargraves,  118  Mass.  325,  332;   Bassett  v.  Gamp,  54  Vt.  232. 

i93Tans]ey  v.  Turner,  2  Bing.  N.  G.  151;  Cooper  v.  Bill,  3  H.  &  G.  722; 
Leonard  v.  Davis,  1  Black,  476,  ;17  L.  Ed.  222;  Boynton  v.  Veazie,  24  Me.  286; 
Kingsley  v.  White,  57  Vt.  565;   Brewster  v.  Leith,  1  Minn.  56  (Gil.  40). 


104  STATUTE  OF  FRAUDS,  (Ch.  4 


SAME— EARNEST  AND  PART  PAYMENT. 

57.  EARNEST.    Earnest   is    soiuet]iiii.g   of   valne,   not  forming   part    of 

the  price,  g^ivext  and  received  to  mark  the  final  assent  of  th.e 
parties  to  the  bargaiji. 

58.  PART  PAYMENT.    Part  payment  may  be  made  at  or  (miless  the 

statute    otherwise    requires)    subsequently    to    the    time    of    the 
contract,  either  in  money  or  anything  of  value. 

Earnest  and  part  payment  are  distinct.^ °*  Earnest  may  be  money 
or  some  gift  or  token  given  to  mark  the  assent  to  the  bargain.^®"*  The 
custom  of  giving  earnest  was  formerly  prevalent  in  England,  but  has 
fallen  into  disuse,  and  the  provision  in  regard  to  it  is  of  little  practical 
importance. 

Part  payment  may  be  subsequent  to  the  contract,^®"  unless,  as  in  some 
states,  the  statute  provides  that  it  must  be  given  at  the  time  of  the 
contract. ^®^  It  must  be  accepted.^®*  It  need  not  be  money,  but  may 
be  anything  of  value,  which  by  mutual  agreement  is  given  and  accepted 
on  account  or  in  part  satisfaction  of  the  price.^^* 


SAME— FORM  REQUIRED. 

59.  The  rules  as  to  the  form  required  by  section  17  are  the  same  as 
in  case  of  section  4,  except  that  the  consideration  of  the  prom- 
ise of  the  party  to  be  charged  need  not  appear. 

The  note  or  memorandum  is  sufficient  if  it  comply  with  the  rules 
already  stated  with  reference  to  the  form  required  by  section  4.  It  is 
not  necessary,  however,  that  the  consideration  of  the  promise  of  the 
party  to  be  charged  be  stated;  in  other  words,  if  the  memorandum 
contains  his  promise,  it  need  make  no  reference  to  the  promise  of  the 

i6*Ben3.  Sales  (6th  Am.  Ed.)  §  189;  Howe  v.  Smith,  27  Ch.  D.  89,  101. 
But  see  Howe  v.  Hayward,  108  Mass.  54,  11  Am.  Rep.  306,  where  It  is  said 
that  earnest  is  regarded  as  part  payment. 

i»o  Brae.  1,  2,  c.  27. 

188  WALKER  V.  NUSSEY,  16  Mees.  &  W.  302;  Thompson  v.  Alger,  12  Mete. 
(I*Iass.)  428,  435;   Marsh  v.  Hyde,  3  Gray  (Mass.)  331. 

197  Hunter  v.  Wetsell,  57  N.  Y.  375,  15  Am.  Rep.  508;  Id.,  84  N.  Y.  649,  38 
Am.  Rep.  544;  Jackson  v.  Tupper,  101  N.  Y.  515,  5  N.  E.  65;  Kerkhof  v. 
Paper  Co.,  68  Wis.  674,  32  N.  W.  7G0. 

18  8  Edgerton  v.  Hodge,  41  Vt  676. 

109  White  V.  Drew,  56  How.  Prac.  (N.  Y.)  53;  Weir  v.  Hudnut,  115  Ind. 
525,  18  N.  E.  24.  Surrender  of  seller's  note,  Sharp  v.  Carroll,  66  Wis.  62,  27 
N.  W.  832 ;  transfer  of  bill  or  note,  Griffiths  v.  Owen,  13  Mees.  &  W.  58 ;  under 
statute  requiring  payment  at  time,  delivery  of  check,  Hunter  v.  Wetsell,  84  N. 
Y.  549,  38  Am.  Rep.  544. 


§  60)  EFFECT   OF   NONCOMPLIANCE.  105 

other  party.^^"  Thus  a  memorandum  in  the  form  of  a  mere  offer, 
though  the  acceptance  be  oral,  is  good.''"^  But  the  price  is  a  material 
part  of  the  bargain,  and  must  be  stated,*"^  though  if  it  be  not  agreed 
upon,  but  is  implied,  a  memorandum  which  states  no  price  is  suffi- 
cient."' 

SAME— EFFECT  OF  NONCOMPLIANCE. 

60.  As  in  case  of  section  4,  it  is  generally  held  that  failure  to  comply 
\»rith  the  provisions  of  section  17  does  not  render  the  contract 
voidf  but  merely  prevents  its  enforcement. 

This  section  declares  that,  if  there  be  no  acceptance  and  receipt,  no 
earnest  or  part  payment,  and  no  note  or  memorandum,  the  contract 
shall  not  "be  allowed  to  be  good,"  thus  differing  from  section  4,  which 
merely  declares  that  no  action  shall  be  brought.  In  England  it  seems 
not  to  have  been  directly  decided  whether  these  words  mean  that  the 
contract  shall  be  utterly  void,  or  merely  incapable  of  being  sued  upon, 
as  in  case  of  contracts  under  section  4;  and  the  dicta  of  the  judges 
are  conflicting.  The  latter  position  is  sustained  by  the  weight  of 
opinion.""*  In  Massachusetts,  where  the  statute  provided  that  no  such 
contract  should  be  "good  or  valid,"  it  has  been  held  that  the  difference 
in  the  wording  of  the  two  sections  was  immaterial,  and  that  failure  of  a 
contract  to  comply  with  the  requirements  of  section  17  does  not  go  to 
its  existence,  but  merely  renders  it  unenforceable  by  suit,  as  under  the 
fourth  section.^'*^  In  Missouri,  however,  it  has  been  held  that  section 
17  goes  to  the  very  existence  of  the  contract.^*"  In  some  states  the 
statute  declares  that  the  contract  shall  be  "void." 

200  Edgerton  v.  Matliews,  6  Blast.  307;  Sari  v.  Bourdillon,  1  C.  B.  N.  S.  188; 
Smith  V.  Ide,  3  Vt.  290;   Williams  v.  Robinson,  73  Me.  186,  40  Am.  Rep.  352. 

201  Reuss  V.  Picksley,  L.  R.  1  Ex.  342;  Sanborn  v.  Flagler,  9  Allen  (Mass.) 
474;  Justice  v.  Lang,  42  N.  Y.  493,  1  Am.  Rep.  576;  Gradle  v.  "Warner,  140  111. 
123,  29  N.  B.  1118;    Kessler  v.  Smith,  42  Minn.  494,  44  N.  W.  794. 

202  Elmore  v.  Kingscote,  5  B.  &  C.  583;  Ashcroft  v.  Butterworth,  136  Mass. 
511;  Stone  v.  Browning,  68  N.  Y.  598;  Hanson  v.  Marsh,  40  Minn.  1,  40  N. 
W.  841. 

203  Hoadley  v.  McLaine,  10  Bing.  482 ;   Ashcroft  v.  Morrison,  4  M.  «&  G.  450. 
«04  Anson,  Cont.  (4th  Ed.)  67;   Pol.  Cont.  605. 

20  6  Townsend  v.  Hargi-aves,  118  Mass.  325;  Wainer  v.  Insurance  Co.,  153 
Mass.  335,  26  N.  B.  877,  11  L.  R.  A.  598.  See,  also,  BIRD  v.  MUNROE,  66  Me. 
837,  22  Am.  Rep.  571.    Ante,  p.  9L 

20  6  Houghtaling  v.  Ball,  20  Mo.  563.  See,  also,  Green  v.  Lewis,  26  U.  G.  Q. 
B.  618. 


306  I  CONSIDERATION.  (Oh.  5 


I 


CHAPTER  V. 

CONSIDERATION. 


61,  62.  Consideration  Defined. 

63,  64.  Necessity  for  Consideration,  and  Presumption, 

65,  66.  Adequacy  of  Consideration. 

67.  Sufficiency  or  Reality  of  Consideration. 
68-70.  Mutual  Promises— Mutuality. 

71-73.  Forbearance  to  Exercise  a  Right. 

74-76.  Doing  What  One  is  Bound  to  Do. 

77,  78.  Impossible  and  Vague  Promises. 

79.  Legality  of  Consideration. 

SO.  Consideration  in  Respect  of  Time — Past  Consideration. 


CONSIDERATION   DEFINED. 

61.  Consideration    is    that    Tp-hicli    moves    from    the    promisee    to    the 

promisor,  at  the  express  or  implied  request  of  the  latter,  in 
return  for  his  promise. 

62.  As  the  term  is  used  in  the  law  of  contract,  it  means  a  "valuable" 

consideration;  that  is,  something  having  value  in  the  eye  of 
the  law.  It  may  consist  either  in  "some  right,  interest,  profit, 
or  benefit  accruing  to  one  party,  or  some  forbearance,  detri- 
ment, loss,  or  responsibility  given,  suffered,  or  undertaken  by 
the   other." 

The  law  requires  every  simple  contract  to  be  based  on  what  it  deems 
a  valuable  consideration.  We  shall  take  up  in  turn  the  different  forms 
which  consideration  may  assume,  and  explain  at  length  what  is  deemed 
a  consideration.^  At  the  outset,  however,  it  will  be  well  to  explain  in 
a  general  way  what  we  mean  when  we  speak  of  the  consideration  for 
a  promise.  Consideration  means  that  which  moves  from  the  promisee 
to  the  promisor,  at  the  latter's  request,  in  return  for  his  promise. 
Consideration  "is  something  done,  forborne,  or  suffered,  or  promised 
to  be  done,  forborne,  or  suffered  by  the  promisee  in  respect  of  the 
promise."  ^  If,  for  instance,  one  man,  by  paying  another  a  sum  of 
money,  procures  a  promise  from  the  latter  in  return  to  do  something 
for  his  benefit,  the  money  paid  is  the  consideration  for  the  promise. 
Consideration,  however,  need  not  be  the  payment  of  money.  It  may 
consist  "in  some  right,  interest,  profit,  or  benefit  accruing  to  one  party, 
or  some  forbearance,  detriment,  loss,  or  responsibility  given,  suffered, 

1  For  the  history  of  consideration,  the  student  should  read  Anson,  Cont 
(8th  Ed.)  43;   Poll.  Cont.  179;   Holmes,  Com.  Law,  253-271,  284-287. 
a  Anson,  Cont.  (8th  Ed.)  74. 


^§  61-62)  CONSIDERATION    DEFINED.  107 

■or  undertaken  by  the  other;"'  provided,  however,  the  benefit  con- 
ferred or  detriment  suffered  is  deemed  of  value  in  the  eye  of  the  law.* 
If  a  person  does  work  for  another  on  the  latter's  express  or  implied 
promise  to  pay  for  it,  or  gives  another  permission  to  use  his  property 
in  return  for  a  promise,  or  gives  up  his  right  to  sue  another,  on  the 
latter's  promise  to  pay  money  or  do  some  other  act,  there  is  in  each 
case  either  a  benefit  accruing  to  the  promisor,  or  a  detriment  suffered 
by  the  promisee,  or  both ;  and  this  is  the  consideration  for  the  promise. 
So,  also,  if  a  person  promises  another  to  do  something  on  the  latter's 
promising  him  to  do  something,  as  where  one  man  promises  another 
to  sell  him  goods,  and  the  promisee  promises  to  buy  them,  and  pay 
for  them,  a  right  is  conferred  by  each  to  the  benefit  of  the  other's 
promise,  and  a  responsibility  is.  un4ertaken  by  each.  The  promise  of 
each  is  the  consideration  for' the  promise  of  the  other."* 

The  fact  that  the  benefit  conferred  or  detriment  suffered  is  slight 
does  not  render  it  any  the  less  a  valuable  consideration.®  The  naming 
of  a  child  after  a  person  will  support  his  promise  to  pay  a  large  sum 
of  money. ^ 

Consideration  Distinguished  from  Mptive. 

"Motive  is  not  the  same  thing  ^vith  consideration.  Consideration 
means  something  which  is  of  value  in  the  eye  of  the  law,  moving  from" 
the  promisee.*  Confusion  between  motive  and  consideration  has,  how- 
ever, sometimes  arisen,  and  has  taken  two  forms:  (i)  The  distinc- 
tion which  once  existed  between  "good"  and  "valuable"  consideration ; 
and  (2)  the  view  which  once  maintained  that  a  moral  obligation  was 
sufficient  to  support  a  promise. 

3  Currie  v.  Misa,  L.  R.  10  Exch.  162.  See,  also,  BAINBRIDGE  v.  FIRM- 
STONE,  8  Adol.  &  E.  743;  Handrahan  v.  O'Regan,  45  Iowa,  298;  DEVECMON 
V.  SHAW,  69  Md.  199,  14  Atl.  474,  9  Am.  St.  Rep.  422;  HAMER  v.  SIDWAY, 
124  N.  Y.  538,  27  N.  E.  256,  12  L.  R.  A.  463,  21  Am.  St.  Rep.  693;  Byrne  v.  Cum- 
mings,  41  Miss.  192;  Day  v.  Gardner,  42  N.  J.  Eq.  199,  7  Atl.  365;  Wolford 
V.  Powers,  85  Ind.  294.  44  Am.  Rep.  16;  Sanders  v.  Carter,  91  Ga.  450,  17  S.  E. 
845;  Dorwin  v.  Smith,  35  Vt.  69;  Train  v.  Gold,  5  Pick.  CNIass.)  380;  Emerson 
V.  Slater,  22  How.  43,  16  L.  Ed.  360;  Taylor  v.  Williams,  120  Ind.  414,  22  N. 
E.  118;  Marslialltown  Stone  Co.  v.  Manufacturing  Co.,  114  Iowa,  574,  87 
N.  W.  496;   Guntlier  v.  Gunther,  181  Mass.  217,  63  N.  E.  402.    And  see  the  old 

cases  of  TRAVER  v.  (1667)  1  Sid.  57;    PAYNTER  v.  CHAMBERLYN 

(1639)  1  Rolle,  Abr.  22;    HAWES  v.  SMITH  (1675)  2  Lev.  122. 

4  Post,  p.  116. 

BFunk  V.  Hough,  29  111.  145;  Earle-  v.  Angell,  157  Mass.  294,  32  N.  E.  164. 
And  see  post,  p.  116. 

6  State  V.  Baker,  8  Md.  44. 

7  Wolford  V.  Powers,  85  Ind.  294;  Diflfenderfer  v.  Scott,  5  Ind.  App.  243,  32 
N.  E.  87;   Daily  v.  Minninck,  117  Iowa,  563,  91  N.  W.  913,  60  L.  R.  A.  840. 

8  THOMAS  V.  THOMAS,  2  Q.  B.  851.  See,  also,  PHILPOT  v.  GRUNIN- 
•GER,  14  Wall.  570,  20  L.  Ed.  743. 


108  CONSIDERATION.  (Ch.  5 

Same — Good  Consideration. 

Natural  affection  for  a  near  relative,  or,  as  it  is  generally  said,  the 
consideration  of  blood,  or  natural  love  and  affection,  is  said  to  be  a 
"good,"  but  not  a  "valuable,"  consideration.®  In  the  law  of  contract 
the  consideration  must  be  "valuable."  In  some  early  English  cases  it 
was  attempted  to  ingraft  the  doctrine  of  good  consideration,  which 
had  been  applied  in  case  of  covenants  to  stand  seised,  upon  the  law  of 
contract,  but  it  was  not  allowed.  The  mere  existence  of  natural  affec- 
tion as  a  motive  for  a  promise  has  probably  never  been  held  to  amount 
to  a  valuable  consideration,  so  as  to  support  an  executory  contract.^** 

It  was  formerly  held  that  if  a  person  for  whose  benefit  a  binding 
promise  was  made  was  nearly  related  to  the  promisee,  the  relationship 
and  the  fact  that  the  contract  was  prompted  by  natural  affection  would 
give  a  right  of  action  to  the  beneficiary.  This  exception  to  the  rule 
that  a  contract  cannot  confer  rights  upon  a  person  who  is  not  a  party 
to  it  is  no  longer  generally  recognized.  ^^  The  question  of  the  right  of 
a  third  person  who  did  not  furnish  the  consideration  to  sue  upon  a 
promise  made  for  his  benefit  will  be  considered  in  discussing  the  opera- 
tion of  contract.^'' 

Same — Moral  Obligation. 

There  are  some  cases  to  the  effect  that  a  mere  moral  obligation  is 
sufficient  consideration  to  support  a  promise,^*  but  it  is  now  well  settled 


9  Chit.  Cont.  27.  "A  good  consideration  Is  such  as  that  of  blood,  or  of 
natural  love  and  affection,  when  a  man  grants  an  estate  to  a  near  relation ; 
being  founded  on  motives  of  generosity,  prudence,  and  natural  duty.  A 
valuable  consideration  Is  such  as  money,  marriage,  or  the  like,  which  the  law 
esteems  an  equivalent  given  for  the  gi'ant,  and  is  therefore  founded  in  mo- 
tives of  justice.  Deeds  made  upon  good  consideration  only  are  considered  as 
merely  volimtary,  and  are  frequently  set  aside  in  favor  of  creditors  and 
bona  fide  purchasers."    2  Bl.  Comm.  297. 

10  BRET  V.  J.  S.  AND  WIFE,  Cro.  Eliz.  755;  FINK  v.  COX,  18  Johns.  (N. 
Y.)  145,  9  Am.  Dec.  191;  Priester  v.  Priester,  Rich.  Eq.  Cas.  26,  18  Am.  Dec. 
191;  Kii-kpatrick  v.  Taylor,  43  111.  207;  Smith  v.  Kittridge,  21  Vt  238;  Phil- 
lips V.  Frye,  14  Allen  (Mass.)  36;  Pennington  v.  Glttings,  2  Gill  &  J.  (Md.)  208; 
Dugan  V.  Glttings,  3  Gill  (Md.)  138,  43  Am.  Dec.  306;  Whitaker  v.  Whitaker, 
52  N.  Y.  368,  11  Am.  Rep.  711;  Cotton  v.  Graham,  84  Ky.  672,  2  S.  W.  647; 
Hadley  v.  Reed,  58  Hun,  608,  12  N.  Y.  Supp.  163;  Williams  v.  Forbes,  114  111. 
167,  28  N.  E.  463;   Wilbur  v.  Warren,  104  N.  Y.  196,  10  N.  E.  263. 

11  Post,  p.  352. 

12  Post,  p.  351. 

13  HAWKES  V.  SAUNDERS,  Cowp.  289;  LEE  v.  MUGGERIDGE,  5  Taunt 
36;  Clark  v.  Herring,  5  Binn.  (Pa.)  35;  Glass  v.  Beach,  5  Vt.  173;  State  v. 
Reigart,  1  Gill  (Md.)  1,  39  Am.  Dec.  628;  Drury  v.  Briscoe,  42  Md.  162;  Mua- 
ser  V.  Ferguson  Tp.,  55  Pa.  475;  In  re  Sutch's  Estate,  201  Pa.  305,  50  Atl.  943. 
And  see  Brown  v.  Latham,  92  Ga.  280,  18  S.  E.  421;  Lawrence  v.  Oglesby,  17S 
111.  122.  52  N.  E.  945.    See  post,  p.  142. 


§§  61-62)  CONSIDERATION    DEFINED.  109 

to  the  contrary.^*  A  man  may  believe  himself  to  be  under  a  moral 
obligation,  either  because  he  has  received  actual  benefits  in  the  past, 
or  from  motives  of  piety,  delicacy,  or  friendship.  Now,  a  past  con- 
sideration, as  virill  be  seen,^^  is  in  truth  no  consideration  at  all,  for  the 
promisor  does  not  receive  a  benefit,  nor  the  promisee  sufifer  a  detri- 
ment, in  return  for  the  promise.  There  are  certain  exceptions  to  this 
statement,  which  will  be  noticed  in  treating  of  past  consideration,  but 
it  will  be  seen  that  the  validity  of  the  promise  in  those  cases  does  not 
properly  rest  on  the  basis  of  moral  obligation,  though  some  courts  put 
it  upon  that  ground.  The  insufficiency  of  past  benefits  to  support  a 
promise  on  the  ground  of  moral  obligation  was  settled  in  England  in 
a  case  in  which  it  was  said:  "The  doctrine  would  annihilate  the 
necessity  for  any  consideration  at  all,  inasmuch  as  the  mere  fact  of 
giving  a  promise  creates  a  moral  obligation  to  perform  it."  ^' 

If  the  actual  receipt  of  a  benefit  in  the  past  does  not  constitute 
consideration  for  a  subsequent  promise,  still  less  will  such  duties  of 
honor,  conscience,  or  friendship  as  a  man  may  conceive  to  be  incumbent 
on  him.  A  man  may  be  bound  in  honor  to  pay  money  lost  in  a  wager, 
but,  inasmuch  as  the  law  has  declared  wagers  to  be  void,  a  promise 
to  pay  such  a  debt  would  be  unenforceable  for  want  of  a  considera- 
tion.*'^ In  like  manner,  a  pious  wish  on  the  part  of  executors  to  carry 
out  the  intentions  of  the  testator  is  no  consideration  for  promises  made 
by  them.^^ 

14  EASTWOOD  V.  KENYON,  11  Adol.  &  E.  438;  MILLS  v.  WYMAN,  3 
Pick.  CNIass.)  207;  BEAUMONT  v.  REEVE,  8  Q.  B.  483;  Ehle  v.  Judson,  24 
Wend.  (N.  Y.)  97;  COOK  v.  BRADLEY,  7  Conn.  57,  18  Am.  Dec.  79;  VALEN- 
TINE V.  FOSTER,  1  Mete.  (Mass.)  520,  35  Am.  Dec.  377;  Updyke  v.  Titus,  13 
N.  J.  Eq.  151;  Farnham  v.  O'Brien,  22  Me.  475;  SHEPARD  v.  RHODES,  7 
R.  I.  470,  84  Am.  Dec.  573;  Gay  v.  Botts,  13  Busli  (Ky.)  299;  Cobb  v.  Cowdery, 
40  Vt.  25,  94  Am.  Dec.  370;  Osier  v.  Hobbs,  33  Ark.  215;  McElven  v.  Sloan,  56 
Ga.  208.  A  promise  by  a  husband  to  his  wife  on  her  deathbed  that  their  son 
should  have  certain  property  is  not  a  valuable  consideration  for  a  conveyance 
from  the  father  to  the  son.  Peek  v.  Peek,  77  Cal.  106,  19  Pac.  227,  1  L.  R.  A. 
185,  11  Am.  St  Rep.  244.    See  post,  p.  141,  note  166. 

16  Post,  p.  136. 

le  EASTWOOD  v.  KENYON,  11  Adol.  &  E.  438. 

17  Morris  v.  Norton,  75  Fed.  912,  21  C.  C.  A.  553. 

18  Anson,  Cont.  (4th  Ed.)  79;    THOMAS  v.  THOMAS,  2  Q.  B.  851. 


V 


^^ 


110  CONSIDERATION.  (Ch.  5 


NECESSITY  FOR  CONSIDERATION,  AND   PRESUMPTION. 

63.  NECESSITY— A  valuable  consideration  is  essential  to  the  validity 

of  every  simple  contract. 
EXCEPTION — Want  of  consideration  does  not  avoid  a  negotiable  in- 
strument  in  the  bands  of  a  bona  fide  purchaser  for  value. 

64.  PRESUMPTION— Negotiable    instruments    are    by    the    law    mer- 

chant deemed  prima  facie  to  have  been  issued  for  a  valuable 
consideration;  and  by  statute  in  some  jurisdictions  the  same  is 
true  of  all  other  simple  contracts  in  ^vritlng,  and  of  contracts 
under  seal  in  those  jurisdictions  \7here  the  common-lav;^  effect 
of  a  seal  has  been  abolished. 

Consideration  is  the  universal  requisite  of  all  contracts  not  under 
seal,  except  the  so-called  "contracts  of  record,"  which,  like  contracts 
under  seal,  derive  their  validity  from  their  form  alone.^®  The  rule 
applies  to  all  simple  contracts,^"  including  those  contracts  which  are 
required  to  be  in  writing,  either  by  the  statute  of  frauds,  or  by  other 
statutes,  or  by  the  common  law.  It  was  at  one  time  doubted  whether 
a  promise  not  under  seal  needed  a  consideration  if  it  was  put  in  writ- 
ing,^^  but  the  necessity  for  a  consideration  was  affirmed  and  settled  in 
England  in  1778  in  a  suit  against  an  administratrix  who,  without  con- 
sideration, had  promised  in  writing  to  answer  damages  out  of  her 
own  estate.  It  was  contended  that  the  writing  required  by  the  statute 
of  frauds  rendered  consideration  unnecessary,  but  the  contrary  was 
held.  "It  is  undoubtedly  true,"  it  was  said,  "that  every  man  is  by  the 
law  of  nature  bound  to  fulfill  his  engagements.  It  is  equally  true  that 
the  law  of  this  country  supplies  no  means  nor  affords  any  remedy  to 
compel  the  performance  of  an  agreement  made  without  sufficient 
consideration.  Such  agreement  is  'nudum  pactum  ex  quo  non  oritur 
actio; '  and,  whatever  may  be  the  sense  of  this  maxim  in  the  civil  law, 
it  is  in  the  last  sense  only  that  it  is  to  be  understood  in  our  law. 

10  RANN  V.  HUGHES,  7  Term  R.  346;  COOKE  v.  OXLEY,  3  Term  R.  653; 
Burnet  v.  Bisco,  4  Johns.  (N.  Y.)  235;  Doebler  v.  Waters,  30  Ga.  344;  Lowe 
V.  Bryant,  32  Ga.  235;  Oullaban  v.  Baldwin,  100  Cal.  648,  35  Pac.  310;  Bran- 
son V.  Kitchenman,  148  Pa.  541,  24  Atl.  61;  McLean  v.  McBean,  74  111.  134; 
Baer  v.  Christian,  83  Ga.  322,  9  S.  E.  790;  Bailey  v.  Walker,  29  Mo.  407; 
Hendy  v.  Kier,  59  Cal.  138;  Culver  v.  Banning,  19  Minn.  303  (Gil.  260);  IN 
RE  JAMES,  78  Hun,  121,  28  N.  Y.  Supp.  992. 

20  The  guaranty  of  another's  debt  must  be  supported  by  a  consideration. 
In  these  contracts  there  are  two  considerations— a  consideration  for  the  orig- 
inal contract,  and  a  consideration  for  the  guaranty.  See  Briggs  v.  Latham, 
36  Kan.  205,  13  Pac.  129.  If,  however,  as  we  have  seen,  a  note,  for  instance, 
is  guarantied  by  a  third  person  before  its  delivery  to  the  payee,  the  consid- 
eration from  the  payee  to  the  maker  is  sufficient  to  support  the  guaranty  as 
well  as  the  note.  Winans  v.  Manufacturing  Co.,  48  Kan.  777,  30  Pac.  163; 
Heyman  v.  Dooley,  77  Md.  162,  26  Atl.  117,  20  L.  R.  A.  257. 

21  PILLANS  v.  VAN  MIEROP  (A.  D.  1765)  3  Burrows,  1663. 


^ 


§§  63-64)      NECESSITY   FOR   CONSIDERATION,  AND   PRESUMPTION.       Ill 

*  *  *  All  contracts  are,  by  the  law  of  England,  distinguished  into 
agreements  by  specialty,  and  agreements  by  parol ;  nor  is  there  any 
such  third  class,  as  some  of  the  counsel  have  endeavored  to  maintain, 
as  contracts  in  writing.  If  they  be  merely  written,  and  not  specialties, 
they  are  parol,  and  a  consideration  must  be  proved."  ^^ 

Negotiable  Instruments. 

Bills  of  exchange,  promissory  notes,  and  other  negotiable  instru- 
ments are  to  some  extent  an  exception  to  this  rule. 

As  between  the  immediate  parties  to  the  instrument  consideration  is 
necessary.  Consideration,  however,  is  said  to  be  presumed — that  is, 
the  instrument  itself  is  prima  facie  evidence  of  consideration ;  but  the 
defendant  may  introduce  evidence  in  rebuttal  of  the  presumption, 
and  if  he  can  show  that  no  consideration  was  given  for  his  making  or 
indorsement  of  the  instrument  his  promise  fails.^^  The  rule  is  the 
same  when  the  party  suing  is  a  subsequent  holder,  unless  he  is  a  pur- 
chaser for  value  before  maturity  without  notice,  in  which  case  want 
of  consideration  is  not  a  defense.^* 

Gratuitous  Employment. 

"The  promise  of  a  gratuitous  service,  although  not  enforceable 
as  a  promise,  involves  a  liability  to  use  ordinary  care  and  skill  in  per- 
formance";  ^"^  or,  as  it  is  usually  put,  the  promisee  is  not  liable  for 
nonfeasance,  but  is  liable  for  misfeasance,  and  this  is  sometimes  said 
to  be  another  exception  to  the  rule  that  consideration  is  necessary  to 
the  validity  of  every  simple  contract.  The  ground  of  this  liability  is 
somewhat  obscure.  Where  a  person  delivers  over  property  to  a  bailee 
or  agent,  it  is  perhaps  possible  to  find  a  consideration  in  the  detri- 
ment which  the  bailor  or  principal  suffers  in  parting  with  control.^® 
But  in  the  mere  case  of  gratuitous  service  or  agency,  this  element  of 
consideration,  if  such  it  be,  does  not  exist.  It  is  sometimes  said  that 
the  trust  and  confidence  reposed  is  a  sufficient  consideration,^'^  but 
if  this  were  so  it  would  be  a  sufficient  consideration  for  the  promise 

22  RANN  V.  HUGHES,  7  Term  K.  350.  See,  also,  COOK  v.  BRADLEY,  7 
Conn.  57;  In  re  Hess'  Estate,  150  Pa.  346,  24  Atl.  676;  Brown  v.  Adams, 
1  Stew.  (Ala.)  51,  IS  Am.  Dec.  48;  BmTiet  v.  Bisco,  4  Johns.  (N.  Y.)  235;  Per- 
rine  V.  Cheeseman,  11  N.  J.  Law,  174,  19  Am.  Dec.  388;  Train,  v.  Gold,  5 
Pick.  (Mass.)  380;   Eddy  v.  Roberts,  17  111.  505. 

23  Norton,  Bills  &  N.  (3d  Ed.)  270. 
2  4  Id.  276. 

2  5  Anson,  Contr.  (Sth  Ed.)  76,  83.  See,  also,  Wilkinson  v.  Coverdale,  1  Esp. 
75;  THOR^E  v.  DEAS,  4  Johns.  (N.  Y.)  84;  Walker  v.  Smith,  1  Wash.  C.  C. 
152,  Fed.  Cas.  No.  17,086;  Williams  v.  Higgins,  30  Md.  404;  Passano  v. 
Acosta.  4  La.  26.  23  Am.  Dec.  470;  Spencer  v.  Towles,  18  Mich.  9;  Isham  v. 
Post,  141  N.  Y.  100.  35  N.  E.  1081,  23  L.  R.  A.  90,  38  Am.  St.  Rep.  766. 

2  6  Coggs  Y.  Bernard.  2  Ld.  R.  909;    Whitehead  v.  Greetham,  2  Bing.  464. 

2T  Hammond  v.  Hussey,  51  N.  H.  40,  12  Am.  Rep.  41. 


112  CONSIDERATION.  (Cb.  5 

to  perform,  and  render  the  promisee  liable  for  nonfeasance.  It  must 
be  admitted  that  the  liability  in  these  cases  arises  independently  of  any 
consideration  to  support  the  undertaking.  Whether  this  liability  is  to 
be  regarded  as  an  anomaly  in  the  law  of  contract  ^*  or  as  arising 
independently  of  contract  ^^  need  not  be  considered. 

Statutory  Presumption  of  Consideration. 

In  some  states,  statutes  have  been  enacted  declaring  that  all  written 
instruments  shall  be  presumptive  evidence  of  a  consideration,  rebut- 
table, however,  by  showing  that  there  was  in  fact  no  consideration, 
thereby  putting  all  simple  contracts  in  writing,  to  this  extent,  on  a  level 
with  negotiable  instruments.'"  The  statutory  changes  in  the  law  in 
respect  to  instruments  under  seal  have  already  been  referred  to.'^ 

ADEQUACY   OF   CONSIDERATION. 

65.  T3ie  validity  of  tlie  contract  is  not  dependent  upon  tlie  adequacy 

of  the  consideration,  provided  it  is  something  of  value  in  the 
eye  of  the  law.sz 

66.  In  eqnity,  inadequacy  of  consideration,  if  such  as  to  be  evidence 

of  fraud,  is  ground  for  refusing  specific  performance;  and  in- 
adequacy of  consideration  is  regarded  as  corroborative  evi- 
dence in  suits  for  relief  from  contracts  on  the  ground  of  fraud 
and  undue  influence. 

In  General. 

At  law  the  benefit  conferred  or  detriment  suffered  by  the  promisee 
in  exchange  for  the  promise  need  not  be  equal  to  the  responsibility 
assumed  by  the  promisor;  or,  in  other  words,  the  consideration  need 
not  be  adequate.  Any  real  consideration,  however  small,  will  support 
a  promise.  So  long  as  a  man  gets  what  he  has  bargained  for,  and  it  is 
of  some  value  in  the  eye  of  the  law,  the  courts  will  not  ask  what  its 
value  may  be  to  him,  or  whether  its  value  is  in  any  way  proportionate 
to  his  act  or  promise  given  in  return,  for  this  would  be  "the  law 
making  the  bargain  instead  of  leaving  the  parties  to  make  it."  *'     In 

28  Anson,  Contr.  (8th  Ed.)  85. 

2  9  "Gratuitous  Undertakings,"  by  Joseph  H.  Beale,  Jr.,  5  Harv.  L.  R.  222. 

80  There  are  such  statutes  In  California,  Indiana,  Iowa,  Kansas,  Kentucky, 
Missouri,  and  possibly  in  other  states. 

81  Ante,  p.  60.  82  Anson,  Cont.  (8th  Ed.)  76. 

83  Pilkington  V.  Scott,  15  Mees.  &  W.  600;  Worth  v.  Case,  42  N.  Y.  362; 
Hubbard  v.  Coolidge,  1  Mete.  (Mass.)  84;  BROOKS  v.  BALL,  18  Johns.  (N. 
Y.)  337;  Nash  v.  Lull,  102  Mass.  60,  3  Am.  Rep.  435;  Earl  v.  Peck,  64  N.  Y. 
5'JG;  Dorwin  v.  Smith,  35  Vt.  69;  Boggs  v.  Wann  (C,  C.)  58  Fed.  681;  Eyre 
V.  Potter,  15  How.  42,  14  L.  Ed.  592;  Grandin  v.  Grandin,  49  N.  J.  Law,  508,  9 
Atl.  756,  60  Am.  Rep.  042;  Crum  v.  Sawyer,  132  111.  443,  24  N.  E.  956;  Minne- 
apolis Land  Co.  v.  McMillan,  79  Minn.  287,  82  N.  W.  591;  Blgelow  v.  Bigelow, 
95  Me.  17,  49  Atl.  49;   Casserleigh  v.  Wood,  119  Fed.  308,  56  C.  C.  A.  212. 


§§  65-66)  ADEQUACY   OF   CONSIDERATION.  113 

a  case  in  the  supreme  court  of  the  United  States,  Mr.  Justice  Story 
said,  in  speal-cing  of  a  guaranty  of  another's  debt,  made  in  consider- 
ation of  one  dollar:  "A  valuable  consideration,  however  small  or 
nominal,  if  given  or  stipulated  for  in  good  faith,  is,  in  the  absence  of 
fraud,  sufficient  to  support  an  action  on  any  parol  contract.  *  *  * 
A  stipulation  in  consideration  of  one  dollar  Js  just  as  effectual  and 
valuable  a  consideration  as  a  larger  sum  stipulated  for  or  paid."  ^* 

Forbearance  by  a  creditor,  for  instance,  to  levy  an  execution  on  the 
debtor's  property,  will  support  a  promise  by  the  debtor  or  by  a  third 
person  to  pay  a  larger  sum  than  could  have  been  recovered  under  the 
execution.  "If,"  said  Lord  Tenterden  in  such  a  case,  "the  inconvenience 
of  an  execution  against  these  goods  at  the  time  in  question  was  so  great 
that  the  defendant  thought  proper  to  buy  it  off  at  such  an  "expense,  I 
do  not  see  that  the  consideration  is  insufficient  for  the  promise."  ^° 

There  may  even  be  a  consideration  without  the  accrual  of  any  benefit 
at  all  to  the  promisor.  If  the  promisee  has  suffered  any  detriment, 
however  slight,  or,  though  he  has  suffered  no  real  detriment,  if  he  has 
done  what  he  was  not  otherwise  bound  to  do,  in  return  for  the  promise, 
he  has  given  a  consideration ;  and  the  court  will  not  ask  whether  the 
promisor  was  benefited.^'  Where,  for  instance,  the  owner  of  boilers 
gave  another  permission  to  weigh  them  on  the  latter's  promise  to  return 
them  in  good  condition,  the  permission  and  advantage  taken  of  it  was 
held  a  sufficient  consideration  for  the  promise.  "The  defendant,"  said 
the  court,  "had  some  reason  for  wishing  to  weigh  the  boilers,  and  he 
could  do  so  only  by  obtaining  permission  from  the  plaintiff,  which  he 
did  obtain  by  promising  to  return  them  in  good  condition.  We  need 
not  inquire  what  benefit  he  expected  to  derive.  The  plaintiff  might 
have  given  or  refused  leave,"  *^ 

So  where  the  defendant  had  made  the  promise  sued  upon  in  con- 
sideration of  the  plaintiffs'  surrender  of  a  guaranty  which  had  been 
given  by  the  defendant,  but  which  turned  out  to  have  been  unenforce- 
able because  it  was  within  the  statute  of  frauds,  the  surrender  was 
held  a  sufficient  consideration  for  the  promise.  "Whether  or  no  the 
guaranty  could  have  been  available,"  said  the  court,  "the  plaintiffs  were 
induced  by  the  defendant's  promise  to  part  with  something  which 

84  Lawrence  v.  McCalmont,  2  How.  426,  11  L.  Ed.  326.  And  see  Appeal  of 
Ferguson,  117  Pa.  426,  11  Atl.  885. 

3  5  SMITH  V.  ALGAR,  1  Barn.  &  Adol.  603. 

36  TRAVER  V. ,  1  Sid.  57;   Chick  v.  Trevett,  20  Me.  462,  37  Am.  Dec. 

68;  Fisher  v.  Bartlett,  8  Greenl.  (Me.)  122,  22  Am.  Dec.  225;  Hind  v.  Hold- 
ship,  2  Watts  (Pa.)  104,  26  Am.  Dec.  107;  Glasgow  v.  Hobbs,  32  Ind.  440; 
Gates  V.  Bales,  78  Ind.  285;  DOYLE  v.  DIXON,  97  Mass.  208,  93  Am.  Dec.  80; 
Cobb  V.  Cowdery,  40  Vt.  25,  94  Am.  Dec.  370;  Hall  Mfg.  Co.  y.  Supply  Co., 
48  Mich.  331,  12  N.  W.  20.i. 

87  BAINBRIDGE  v.  FIRMSTONE,  8  Adol.  &  El.  743. 

Clabk  Cont.  (2d  Ed.)— S 


114  CONSIDERATION.  (Ch.  5 

they  might  have  kept,  and  the  defendant  obtained  what  he  desired  by 
means  of  that  promise."  ^* 

On  this  principle,  the  refraining  by  a  person  from  the  use  of  liquor 
and  tobacco  for  a  certain  time  at  the  request  of  another  has  been  held 
a  sufficient  consideration  for  a  promise  by  the  latter  to  pay  him  a 
sum  of  money.^*  So,  also,  where  a  person  traveled  for  his  own 
pleasure  and  benefit  at  the  request  of  another,  this  was  held  sufficient  to 
support  a  promise  by  the  latter  to  reimburse  him  for  his  expenses ;  ** 
and,  where  an  executor  forbore  to  act  as  such  on  his  coexecutor's  prom- 
ise to  divide  commissions  with  him,  the  forbearance  was  held  a  con- 
sideration for  the  promise.*^  It  has  even  been  held  that  the  liability 
incurred  in  purchasing  property  upon  the  faith  of  a  promise  made  by 
another  to  contribute  a  certain  sum  in  part  payment  of  the  price  is  a 
sufficient  consideration  to  make  the  promise  binding;*^  and  where  a 
person  agreed  to  contribute  a  sum  of  money  for  the  purpose  of  dis- 
charging a  mortgage  on  church  property,  on  condition  that  the  church 
would  raise  the  balance  by  voluntary  subscription,  and  the  church 
performed  the  condition,  it  was  held  that  the  promise  became  binding.*^ 

Marriage  is  a  valuable  consideration  for  a  promise,**  and  mutual 
promises  to  marry  are  a  consideration  each  for  the  other.*' 

We  have  seen,  in  discussing  contracts  under  seal,  that  want  of  con- 
sideration may  be  shown  notwithstanding  the  seal,  where  the  contract 
is  in  partial  restraint  of  trade.     The  fact,  however,  that  a  contract  is 


3  8  HAIGH  V.  BROOKS,  10  Adol.  &  El.  309.  And  see  Judy  v.  Louderman, 
48  Ohio  St.  562,  29  N.  E.  181;  Churchill  v.  Bradley,  58  Vt.  403,  5  Atl.  189,  56 
Am.  Rep.  563;  Sykes  y.  Chadwick,  IS  Wall.  141,  21  L.  Ed.  824;  Merchant  v. 
O'Rourke,  111  Iowa,  351,  82  N.  W.  759.  Contra:  McCoIlum  v.  Edmonds,  109 
Ala.  322,  19  South.  501. 

3  9HAMER  V.  SID  WAY,  124  N.  Y.  538,  27  N.  E.  256,  12  L.  R.  A.  463,  21 
Am.  St.  Rep.  693 ;  TALBOTT  v.  STEMMONS'  EX'R,  89  Ky.  222,  12  S.  W.  297, 
5  L.  R.  A.  856,  25  Am.  St.  Rep.  531;  Lindell  v.  Rokes.  60  Mo.  249,  21  Am. 
Rep.  395. 

40  DEVECMON  V.  SHAW,  69  Md.  199,  14  Atl.  464,  9  Am.  St.  Rep.  422.  See, 
also,  Hoshor  v.  Kautz,  19  Wash.  258,  53  Pac.  51. 

41  Ohlendorff  v.  Kanne,  66  Md.  405,  8  Atl.  351.  See,  also,  John  v.  John,  122 
Pa.  107,  15  Atl.  675. 

42  Steele  v.  Steele,  75  Md.  477,  23  Atl.  959;  Skidmore  v.  Bradford,  L.  R.  8 
Eq.  134. 

4  3  Roberts  v.  Cobb,  103  N.  Y.  600,  9  N.  E.  500. 

4  4  Shadwell  v.  Shadwell,  9  C.  B.  (N.  S.)  159;  Wright  v.  Wright,  54  N.  T. 
137;  Peck  v.  Vandemark,  99  N.  Y.  29,  1  N.  B,  41;  Dugan  v,  Gittings,  3  Gill 
(Md.)  138,  43  Am.  Dec.  306;  Rockafellow  v.  Newcomb,  57  111.  191;  Frank's 
Appeal,  59  Pa.  194;  Nowack  v.  Berger.  133  Mo.  24,  34  S.  W.  489,  31  L.  R.  A. 
810,  54  Am.  St.  Rep.  663;  Wright  v.  Wright,  114  Iowa,  748,  87  N.  W.  709,  55 
L.  R.  A.  261.  Release  from  promise  to  marry  is  sufficient.  Snell  t.  Bray,  56 
Wis.  156,  14  N.  W.  14. 

4  0  Post,  p.  117. 


§§  65-66)  ADEQUACY   OF   CONSIDERATION.  115 

in  partial  restraint  of  trade  forms  no  exception  to  the  doctrine  that 
adequacy  of  consideration  cannot  be  inquired  into.** 

Exception  in  Exchange  of  Fixed  Values. 

The  doctrine  that  courts  of  law  will  not  inquire  into  the  adequacy  of 
consideration  is  based  on  their  inability  to  determine  what  value  the 
parties  may  have  attached  to  a  thing  given  or  promised,  and  it  does 
not  apply  to  an  exchange  of  things  the  value  of  which  is  exactly  and 
conclusively  fixed  by  law.*''  In  an  Indiana  case  on  this  point  the 
defendant  had  promised  to  pay  the  plaintiff  and  others  $600  in  con- 
sideration of  a  promise  by  them  to  pay  him  one  cent,  and  the  consider- 
ation was  held  inadequate.  "It  is  true,"  said  the  court,  "that,  as  a 
general  proposition,  inadequacy  of  consideration  will  not  vitiate  an 
agreement.  But  this  doctrine  does  not  apply  to  a  mere  exchange  of 
sums  of  money — of  coin — whose  value  is  exactly  fixed,  but  to  the  ex- 
change of  something  of,  in  itself,  indeterminate  value,  for  money,  or 
perhaps  for  some  other  thing  of  indeterminate  value.  In  this  case,  had 
the  one  cent  mentioned  been  some  particular  one  cent,  a  family  piece,  or 
ancient,  remarkable  coin,  possessing  an  indeterminate  value,  extrinsic 
from  its  simple  money  value,  a  different  view  might  be  taken.  As  it 
is,  the  mere  promise  to  pay  $600  for  one  cent,  even  had  the  portion  of 
the  cent  due  from  the  plaintiff  been  tendered,  is  an  tmconscionable 
contract,  void  at  first  blush  upon  its  face,  if  it  be  regarded  as  an  earnest 
one."  ** 

In  Equity. 

Inadequacy  of  consideration  will  be  taken  into  account  to  some  ex- 
tent by  courts  of  equity  in  the  exercise  of  their  peculiar  power  to  compel 
specific  performance  of  contracts.  It  has  been  held  that  inadequacy 
of  consideration,  without  more,  is  ground  upon  which  specific  per- 
formance may  be  resisted;  but  the  better  doctrine  requires  that  there 
shall  be  such  gross  inadequacy  as  to  shock  the  conscience,  and  amount 
in  itself  to  evidence  of  fraud.* ^     And  if  a  contract  is  sought  to  be 


46  Guerand  v.  Bandelet,  32  Md.  561,  3  Am.  Rep.  164;  Pierce  v.  Fuller,  8 
Mass.  223,  5  Am.  Dec.  102;  McClung's  Appeal,  58  Pa.  51;  Hubbard  v.  Miller. 
27  Mich.  15,  15  Am.  Rep.  153;  Dufty  v.  Sbockey,  11  lud.  70,  71  Am.  Dec.  348; 
LJnn  V.  Sigsbee,  67  111.  75;  Grasselli  v.  Lowden,  11  Ohio  St,  349;  La-m-ence 
V.  Kidder,  10  Barb.  (N.  Y.)  &41. 

47  Langd.  Cont.  70;  SCHNELL  v.  NELL,  17  Ind.  29,  79  Am.  Dec.  453; 
SHEPARD  v.  RHODES,  7  R.  L  470;  BROOKS  v.  BALL,  18  Johns.  (N.  Y.) 
337. 

48  SCHNELL  V.  NELL,  17  Ind.  29,  79  Am.  Dec.  453. 

4  9  Coles  V.  Trecothick,  9  Ves.  234;  Conrad  v.  Schwamb,  53  Wis.  378,  10  N. 
W.  395;  Conaway  v.  Sweeny,  24  W.  Va.  643;  Randolph's  Ex'r  v.  Ouidnick 
Co.,  135  U.  S.  457,  10  Sup.  Ct.  655,  34  L.  Ed.  200 ;  Watson  v.  Doyle,  130  111. 
415,  22  N.  E.  613;  Eaton,  Eq.  539.  In  some  states  an  adequate  consideration 
is  required  by  statute.    Morrill  v.  Everson,  77  Cal.  114,  19  Pac.  190. 


116  CONSIDERATION.  (Ch.  5 

avoided  on  the  ground  of  fraud  or  undue  influence,  the  consideration 
may  be  inquired  into,  and  inadequacy  of  consideration  will  be  regarded 
as  corroborative  evidence  in  support  of  the  suit ;  °°  but  mere  inadequacy 
of  consideration  alone  is  not  enough  to  warrant  the  court's  interfer- 


ence.'^ 


SUFFICIENCY  OR  REALITY  OF  CONSIDERATION. 

67.  Thougli  the  consideration  need  not  "be  adequate  to  the  promise, 
it  must  not  he  illusory  or  unreal;  some  henefit  must  be  con- 
ferred on  the  promisor,  or  some  detriment  sufiered  by  the 
promisee. 

Reality  of  Consideration, 

Although  courts  of  law  will  not  inquire  into  the  adequacy  of  con- 
sideration, they  will  insist  that  it  shall  not  be  illusory  or  unreal. 
Strictly  speaking,  what  we  call  an  "unreal  consideration"  is  no  consid- 
eration at  all,  but  this  use  of  the  term  cannot  well  mislead.  To  under- 
stand what  the  law  regards  as  a  real  and  what  as  an  unreal  consider- 
ation, it  will  be  well  to  inquire  into  the  various  forms  which  consider- 
ation may  assume,  and  to  note  the  grounds  upon  which  certain  alleged 
considerations  have  been  held  to  be  of  no  real  value  in  the  eye  of  the 
law. 

Forms  of  Consideration. 

The  consideration  for  a  promise  may  be  an  act  or  a  forbearance,  or 
a  promise  to  do  or  forbear.  When  a  promise  is  given  for  a  promise, 
the  contract  is  said  to  be  made  upon  an  executory;_consideration.  The 
obligations  created  by  it  rest  equally  upon  both  parties,  each  being 
bound  to  a  future  act.  An  example  is  in  case  of  mutual  promises  to 
marry,  in  which  the  consideration  for  the  promise  of  each  is  the  promise 
of  the  other.  When  the  consideration  for  a  promise  is  an  act  or  for- 
bearance, the  contract  is  said  to  be  made  upon  a  consideration  executed. 
This  arises  when  either  the  offer  or  acceptance  is  signified  by  one  of 
the  parties  doing  all  that  he  is  bound  to  do  under  the  contract  so  created. 

A  contract  consisting  of  mutual  promises,  so  that  both  parties  are 
bound  to  some  future  act  or  forbearance,  is  said  to  be  bilateral.  A 
contract  in  which  the  offer  or  acceptance  is  signified  by  one  of  the 

BO  Gifford  v.  Thorn,  9  N.  J.  Eq.  702;  Grindrotl  v.  Wolf,  38  Kan.  292,  16  Pac. 
G91;  Bowman  v.  Patrick  (C.  C.)  36  Fed.  138;  Gofer  v.  Moore,  87  Ala.  705,  6 
South.  300;    Burke  v.  Taylor,  94  Ala.  530,  10  South.  129. 

01  Phillips  V.  Pullen,  45  N.  J.  Eq.  5,  16  Atl.  9;  Jones  v.  Degge,  84  Va.  685, 
5  S.  E.  799;  Dent  v.  Ferguson,  132  U.  S.  50,  10  Sup.  Ct.  13,  33  L.  Ed.  242;  Ber- 
ry V.  Hall,  105  N.  C.  154,  10  S.  B.  9C3;  Brockway  v.  Harrington,  82  Iowa,  23, 
47  N.  W.  1013;  Miles  v.  Iron  Co.,  125  N.  Y.  294,  26  N.  E.  261;  Bierne  v.  Ray, 
37  W.  Va.  571,  16  S.  E.  804;  Eaton,  Eq.  307.  And  see  the  cases  cited  in  the 
preceding  note. 


(^ 


'  A^  ^J^'  ""^^ 


§§  08-70)  MUTUAL   PROMISES — MUTUALITY  117 

parties  doing-  all  he  is  required  to  do  under  the  agreement,  leaving  out- 
standing obligations  on  the  other  party  only,  is  said  to  be  unilateral. 


SAME— MUTUAL    PROMISES— MUTUAIilTY, 

68.  A  promise  is  a  sufficient  consideration  for  a  promise* 

69.  Tlie  promises  must  be  concurrent. 

70.  The  promise  may  be  contingent  or  conditional,  except  tbat— 
MUTUALITY— Mutuality  of  engagement  is  necessary,  and,  if  the  con- 
dition or  contingency  produces  \pant  of  mutuality,  the  consid- 
eration is  insufficient.    Both  parties  must  be  bound  or  neither 
is  bound. 

It  is  well  settled  that  a  promise  is  a  sufficient  consideration  for  a 
promise.^^  In  the  case  of  mutual  promises  to  marry,  the  promise  of 
each  party  is  a  sufficient  consideration  for  the  promise  of  the  other;  ''^ 
and  so  it  is  in  any  other  case  of  mutual  promises,  provided,  of  course, 
the  promises  are  to  do  something  of  value  in  the  eye  of  the  law.  In 
other  words,  as  a  rule,  a  promise  to  do  a  thing  is  just  as  valuable  a 
consideration  as  the  actual  doing  of  it  would  be.  After  a  person  had 
sold  and  conveyed  land,  the  parties,  differing  as  to  the  quantity  of  land 
embraced  in  the  tract,  made  an  agreement  by  which  the  land  was  to  be 
surveyed,  and  the  grantor  should  pay  for  any  deficiency,  M'hile  the 
grantee  should  pay  for  any  excess  over  the  acreage  mentioned  in  the 
deed.  It  turned  out  that  there  was  an  excess,"  but  the  grantee,  when 
sued  on  his  promise  to  pay  therefor,  claimed  that,  as  all  the  land  was 
conveyed  by  the  deed,  his  promise  was  without  consideration.  It  was 
held,  however,  that  the  promise  of  the  grantor  to  pay  for  any  deficiency 
was  a  sufficient  consideration.^* 

The  promises,  to  constitute  a  consideration  for  each  other,  must  be 
concurrent,  or  become  obligatory  at  the  same  time;  otherwise  each  will 
be  without  consideration  at  the  time  it  is  made,  and  both  will  therefore 

82  Higgins  V.  Hill,  56  Law  T.  R.  (N.  S.)  426;  STRANGBOROUGH  AND 
WARNER'S  CASE,  4  Leon.  3;  GOWER  v.  CAPPER,  Cro.  Eliz.  543;  NICH- 
OLS V.  RAYNBRED,  Hob.  88;  Mlssisquoi  Bank  v.  Sabin,  48  Vt.  239;  Buck- 
ingham V.  Ludlum,  40  N.  J.  Eq.  422,  2  Atl.  265;  Pliillips  v.  Preston,  5  How. 
278,  13  L.  Ed.  702;  Funk  v.  Hough,  29  111.  145;  Coleman  v.  Eyre,  45  N.  Y.  38; 
Briggs  V.  Tillotson,  8  Johns.  (N.  Y.)  304;  Baker  v.  Railroad  Co.,  91  Mo.  152, 
3  S.  W.  486;  Porter  v.  Rose,  12  Johns.  (N.  Y.)  209,  7  Am.  Dec.  306;  Cramer  v. 
Redman  (Wyo.)  68  Pac.  1003.  Promise  to  attend  a  person's  fmieral  in  return 
for  promise  by  the  latter  to  pay  money.  Eai'le  v.  Angell,  157  Mass.  294,  32 
J{.  E.  164. 

\  63  HARRISON  V.  CAGE,  5  Mod.  411;    HOLT  v.  WARD  CLARENCIEUX, 
2^  Strange,  937. 

64  SEWARD  V.  MITCHELL,  1  Cold.  (Tenn.)  87;  Howe  v.  O'Mally.  5  N. 
C.  287,  3  Am.  Dec.  693.  It  would  be  otherwise  if  there  were  no  promise  by 
the  grantor.    Smith  v.  Ware,  13  Johns.  (N,  Y.)  259. 


118  CONSIDERATION.  (Ch.  5 

be  nuda  pacta."  As  explained  in  treating  of  offer  and  acceptance, 
some  time  must  necessarily  elapse  between  an  offer  and  its  acceptance, 
and  in  some  cases  a  considerable  time  may  elapse.  The  offer,  however, 
is  considered  as  continuing  during  the  time  allowed  for  acceptance ; 
and  when  it  is  accepted  by  the  giving  of  a  promise  both  promises  be- 
come obligatory  at  the  same  time,  or  are  concurrent. 

A  promise  which  is  merely  voidable,  as  in  case  of  an  infant,  may  be 
a  sufficient  consideration.^*  And,  as  we  have  seen,  an  oral  promise 
which  is  unenforceable  within  the  statute  of  frauds  is  generally  held  to 
be  a  good  consideration  for  the  promise  of  the  other  if  he  has  signed 
the  writing.^'^ 

Voluntary  Subscriptions. 

Voluntary  subscriptions  by  a  number  of  persons  to  promote  some 
object  in  which  they  have  a  common  interest — as,  for  instance,  where 
a  number  of  persons  voluntarily  promise  to  pay  a  certain  sum  each  to 
found  a  college — have  been  said  to  furnish  an  illustration  of  mutual 
promises.  Some  courts  have  sustained  them  on  the  ground  that  the 
promise  of  each  subscriber  is  the  consideration  for  the  promises  of  the 
others. ^^  This  ground,  however,  appears  to  be  untenable,  for  the 
reason  that  as  a  matter  of  fact  the  subscribers,  in  most  cases  at  least, 
do  not  give  their  promises  in  consideration  of  each  other.^®  An  addi- 
tional objection  to  a  recovery  by  the  beneficiary  in  such  cases  is  that 
the  beneficiary,  not  being  a  party  to  the  contract,  cannot  maintain  an 
action  upon  it,®°  except  in  states  which  have  established  the  broad  rule 
that  a  person  for  whose  benefit  a  promise  is  made  can  sue  upon  it.°^ 
The  liability  of  the  subscriber  upon  his  subscription  in  such  cases  is 
generally   enforced,   but  different   courts   advance   different   views   in 

55  NICHOLS  V.  RAYNBRED,  Hob.  88;  Keep  v.  Goodrich,  12  Johns.  (N.  Y.) 
397;  Tucker  v.  Woods,  13  Johns.  (N.  Y.)  190,  7  Am.  Dec.  305;  Buckingham  v. 
LudJum,  40  N.  J.  Eq.  422,  2  Atl.  205. 

56  HOLT  V.  WARD  CLEMENCIEUX,  2  Strange,  937.     Post,  p.  1G3. 
5  7  Ante.  pp.  88,  105. 

58  Higert  V.  Asbury  University,  53  Ind.  326  (collecting  cases);  Lathrop  v. 
Knapp,  27  Wis.  214;  Trustees  of  Troy  Conference  Academy  v.  Nelson,  24  Vt. 
189;  Christian  College  v.  Hendley,  49  Cal.  347;  Allen  v.  Duffle,  43  Mich.  1,  4 
N.  W.  427,  38  Am.  Rep.  159;  First  Universalist  Church  v.  Pungs,  126  Mich. 
670,  86  N.  W.  235;  Irwin  v.  University,  56  Ohio  St.  9,  46  N.  B.  63,  36  L.  R.  A. 
239,  60  Am.  St,  Rep.  727;  Waters  v.  Union  Trust  Co.,  129  Mich.  640,  89  N. 
W.  687. 

59  Cottage  Street  Chm-ch  v.  Kendall,  121  IMass.  528,  23  Am.  Rep.  286;  Cul- 
ver V.  Banning,  19  Minn.  303  (Gil.  260);  PRESBYTERIAN  CHURCH  OF  AL- 
BANY V.  COOPER,  112  N.  Y.  517,  20  N.  E.  352,  3  L.  R.  A.  468,  8  Am.  St.  Rep. 
767. 

60  PRESBYTERIAN  CHURCH  OF  ALBANY  v,  COOPER,  supra;  cf.  Keuka 
College  v.  Ray,  167  N.  Y.  96,  60  N.  E.  325.    Post,  p.  851. 

«i  Irwin  V.  Lombard  University,  supra.  ,  /; 


Uo  M   W    /^-*^ 


^" 


§§  68-70)  MUTUAL   PROMISES — MUTUALITY.  119 

support  of  their  holding's.®^  By  some  courts  it  is  held  that  the  sub- 
scription is  an  offer  which  becomes  binding  by  acceptance  when  the 
beneficiary  in  reUance  upon  it  incurs  expense  or  HabiUty.*"^  By  other 
courts  it  is  held  that  when  the  subscription  is  accepted  there  is  an  im- 
phed  counter  promise  on  the  part  of  the  beneficiary,  which  is  the 
consideration."*  Still  other  courts  sustain  the  liability  of  the  subscriber 
on  the  ground  of  equitable  estoppel  arising  from  the  expenditure  of 
money  or  incurring  of  liability  by  the  beneficiary  in  reliance  upon 
the  subscription, "° 

Contingent  and  Conditional  Promises — Options. 

In  bilateral  contracts — that  is,  where  the  consideration  for  a  promise 
is  a  promise — the  whole  contract  may  be  intended  by  the  parties  to 
be  contingent,  so  that  obligation  is  to  arise  under  it  only  upon  the 
occurrence  of  some  event  or  contingency.  If  A.  offers  to  supply  at  a 
certain  price  such  goods  as  B.  may  order,  and  B.  promises  to  pay  at  Jj 
that  price  for  such  goods  as  he  may  order,  there  is,  of  course,  no  con-  " 
tract,  for  B.  has  not  promised  to  order  any  goods,  and  it  is  optional 
with  him  whether  his  promise  to  pay  shall  ever  come  into  effect.*® 
Both  j.arties  must  be  bound  or  neither  is  bound;  in  other  words,  there 
must  be  mutuality  of  engagement® '^     In  such  a  case,  indeed,  if  before 

62  See  15  Harv.  L.  R.  312. 

63  SHERWIX  Y.  FLETCHER,  1G8  Mass.  413,  47  N.  E.  197;    Grand  Lodge 

I.  O.  G.  T.  V.  Farnham,  70  Cal.  15S,  11  Pac.  592.     See,  also.  Twenty-Third  St.     . 
Baptist  Church  v.  Cornell,  lITTs.  T.  601,  23  N.  E.  117,  6  L.  R.  A.  807 ;   Town  of 
Grand  Isle  v.  Kinney,  70  Vt.  381,  41  At).  130;    Richelieu  Hotel  Co.  v.  Encamp- 
ment Co.,  140  111.  248,  29  N.  E.  1044,  33  Am.  St  Rep.  234;-  Hodges  v.  Nalty, 
104  Wis.  4&4,  SO  N.  W.  726. 

64  Trustees  of  Maine  Cent.  Inst.  v.  Haskell,  73  Me.  140;  Barnett  v.  College, 
10  Ind.  App.  103,  37  N.  E.  427.  And  see  Keuka  College  v.  Ray,  167  N.  Y.  96, 
CO  N.  E.  325. 

6  5  Beatty's  Estate  v.  College,  177  111.  280,  52  N.  E.  432,  42  L.  R.  A.  797,  69 
Am.  St  Rep.  242.  See,  also,  Irwin  v.  Lombard  University,  56  Ohio  St.  9,  46 
N.  E.  63,  36  L.  R.  A.  239,  60  Am.  St.  Rep.  727;  Simpson  Centenary  College 
V.  Tuttle.  71  Iowa,  596,  33  N.  W.  74. 

C6  American  Cotton  Oil  Co.  v.  Kirk,  68  Fed.  791,  15  C.  C.  A.  540;  Rafolovitz 
V.  Tobacco  Co.,  73  Hun,  87,  25  N.  Y.  Supp.  1036;  CHICAGO  &  G.  E.  RY. 
CO.  V.  DANE,  43  N.  Y.  240;  Davie  v.  Mining  Co.,  93  Mich.  491,  53  N.  W.  625, 
24  L.  R.  A,  357;  Teipel  v.  Meyer,  106  Wis.  41,  81  N.  W.  982;  Dennis  v.  Sly- 
field,  117  Fed.  474,  54  C.  C.  A.  520. 

6  7  Keep  V.  Goodrich,  12  Johns.  (N.  Y.)  397;  Ewins  v,  Gordon,  49  N.  H.  444; 
Burnet  v.  Bisco,  4  Johns.  (X.  Y.)  235;  McKinley  v.  Watkins,  13  111.  140; 
L'Amoreus  v.  Gould,  7  N.  Y.  349,  57  Am.  Dec.  524;  Thayer  v.  Burchard,  99 
Mass.  508;  Smith  v.  Weaver.  90  111.  392;  Bean  v.  Burbank,  16  Me.  458,  33 
Am.  Dec.  681;  Mers  v.  Insurance  Co.,  68  Mo.  127;  Stembj-idge  v.  Stem- 
bridge's  Adm'r.  87  Ky.  91,  7  S.  W.  611;  Shenandoah  Val.  R.  Co.  v.  Dunlop, 
86  Va.  346,  10  S.  E.  239;  Barker  v.  Critzer.  35  Kan.  459,  11  Pac.  382;  Warren 
V.  Costello,  109  Mo.  338,  19  S.  W.  29,  .32  Am.  St.  Rep.  069;  Graybill  v.  Brugh, 
89  Ya.  895,  17  S.  E.  558,  21  L.  R.  A.  133,  37  Am.  St  Rep.  894;  Wagner  v.  J,  & 


120  CONSIDERATION.  (Cll.  5 

the  offer  is  withdrawn,  B.  orders  goods,  A.  is  bound  tf)se[]  at  the 
pnce  named.  ** 

On  the  other  hand,  if  A.  offers  to  supply  at  a  certain  price  all  the 
goods  of  a  certain  kind  which  B.  may  need  in  his  business  for  a  certain 
time,  and  B.  promises  to  buy  such  goods,  the  promises  are  mutually 
binding;  ^^  for  although  B.  may  not  need  the  goods,  and  hence  is  not 
absolutely  bound  to  pay,  in  the  event  of  the  contingency  of  his  needing 
the  goods  he  is  bound  to  buy  them  of  A.  So,  if  the  agreement  is  for 
the  purchase  by  B.  of  all  or  a  certain  part  of  all  the  goods  of  a  certain 
kind  that  A.  may  produce  in  a  certain  period.^** 

Somewhat  similar  in  character  are  the  considerations  which  consist 
in  conditional  promises;  as,  for  instance,  where  a  person  promises  to 
do  something  for  a  reward,  but  the  other  party  only  binds  himself  to 
pay  the  reward  upon  the  happening  of  an  event  which  may  not  be 
under  the  control  of  either  party.     Such  would  be  the  case  in  a  building 

'g.  Meakin,  92  Fed.  76,  33  C.  C.  A.  677;   Morrow  v.  Express  Co.,  101  Ga.  810, 
28  S.  E.  998.     See,  also,  cases  cited,  p.   33,  note  77. 

68  G.  N.  RAILWAY  CO.  v.  WITHAM,  L.  R.  9  C.  P.  16;  Johnston  v.  Trippe 
(C.  C.)  33  Fed.  530;  Moses  v.  McClain,  82  Ala.  370,  2  South.  741;  Wisconsin, 
I.  &  N.  Ry.  Co.  V.  Braham,  71  Iowa,  484,  32  N.  W.  392;  Davis  v.  Robert,  89 
Ala.  402,  8  South.  114,  18  Am.  St.  Rep.  126;  Ross  v.  Parks,  93  Ala.  153,  8 
South.  368,  11  L.  R.  A.  148,  30  Am.  St.  Rep.  47;  Thayer  v.  Bm-chard.  99  Mass. 
5(08;  COOPER  v.  WHEEL  CO.,  94  Mich.  272,  54  N.  W.  39,  34  Am.  St.  Rep. 
341.  See,  also,  Michigan  Bolt  &  Nut  Works  v.  Steel,  111  Mich.  153,  69  N.  W. 
241.  Filing  of  bill  by  vendee  for  specific  performance  has  been  held  to  supply 
mutuality.  Dynan  v.  McColloch,  46  N.  J.  Eq.  11,  18  Atl.  822.  But  most  of  the 
cases  are  to  the  contrary.    See  cases  cited  ante,  note  67. 

69  See  Sheffield  Furnace  Co.  v.  Coke  Co.,  101  Ala.  446,  14  South.  672;  WELLS 
v.  ALEXANDRE,  130  N.  Y.  642,  29  N.  E.  142,  15  L.  R.  A.  218;  Smith  v.  Morse, 
20  La.  Ann.  220;  Minnesota  Lumber  Co.  v.  Coal  Co.,  160  111.  85,  43  N.  E. 
774,  31  L.  R.  A.  529;  Hickey  v.  O'Brien,  123  Mich.  611,  82  N.  W.  241,  49  L.  R. 
A.  594,  81  Am.  St.  Rep.  227;  E.  G.  Dailey  Co.  v.  Can  Co.,  128  Mich.  591,  87 
N.  W.  761.  Manhattan  Oil  Co.  v.  Lubricating  Co.,  113  Fed.  923,  51  C.  C.  A. 
553;  Excelsior  Wrapper  Co.  v.  Messinger,  116  Wis.  549,  93  N.  W.  459;  Louden- 
back  Fertilizer  Co.  v.  Phosphate  Co.,  121  Fed.  298,  58  C.  C.  A.  220,  61  L.  R. 
A.  402.  Contra,  Bailey  v.  Austrian,  19  Minn.  535  (Gil.  465).  An  agreement 
by  a  wholesale  dealer  to  supply  a  retailer,  which  leaves  it  practically  optional 
to  increase  or  diminish  his  orders  with  the  rise  or  fall  of  prices,  held  void 
for  want  of  mutuality.  Crane  v.  C.  Crane  &  Co.,  105  Fed.  869,  45  C.  C.  A. 
96.  See,  also,  Cold  Blast  Transp.  Co.  v.  Bolt  &  Nut  Co.,  114  Fed.  77,  52  C.  G. 
A.  25,  57  L.  R.  A.  696. 

7  0  McCall  Co.  V.  Icks,  107  Wis.  232,  83  N.  W.  300.  See,  also.  Burgess  Sul- 
phite Fibre  Co.  v.  Broomfield,  180  Mass.  283,  62  N.  E.  367;  Brawley  v.  U. 
S.,  96  U.  S.  168,  24  L.  Ed.  622;  Lobeustein  v.  U.  S.,  91  U.  S.  324,  23  L.  Ed. 
410;  Grant  v.  U.  S.,  7  Wall.  331,  19  L.  Ed.  194.  Where  land  was  agreed  to 
be  sold,  and  the  title  was  defective,  by  reason  of  a  suit  to  set  aside  a  will 
under  which  the  vendor  claimed,  an  agreement  to  postpone  execution  of  the 
contract  until  determination  of  the  suit  was  sustained  on  the  ground  that  the 
vendee  would  be  bound  to  accept  the  title  if  the  will  should  be  sustained. 
Hale  V.  Cravener,  128  111.  408,  21  N.  E.  534.    See  ante,  p.  45,  note  132. 


§§  71-73)  FORBEARANCE   TO    EXERCISE   A    RIGHT.  121 

contract  where  the  promise  to  pay  for  the  work  to  be  done  is  made  con- 
ditional upon  the  approval  of  the  architect.  Again,  the  promise  may 
be  conditional  on  something  happening,  as  in  case  of  promises  in  a 
charter  party  which  are  not  to  take  effect  if  certain  specified  risks 
occur.  In  the  one  case  the  promise  depends  for  its  fulfillment  upon 
a  condition  precedent;  in  the  other  it  is  liable  to  be  defeated  by  a 
condition  subsequent.  In  neither  case  does  its  conditional  character 
prevent  it  from  forming  a  sufficient  consideration  for  promises  given 
in  return.     These  cases  are  for  consideration  in  a  subsequent  chapter. 


SAMS— FORBEARANCE  TO  EXERCISE  A  RIGHT. 

71.  Forbearance  or  a  promise  to  forbear  from  doing  \irliat  one  is  oth- 

ernrise  entitled  to  do  is  a  siifficient  consideration. 

72.  Forbearance  or  a  promise  to  forbear  from  doing  -wrliat  one  cannot 

legally  do  is  no  consideration;  but  if  a  riglit  is  doubtful,  so 
that  there  are  reasonable  grounds  for  trying  to  enforce  it,  for- 
bearance is  a  sufficient  consideration. 

73.  COMPROMISE.    "Where  the  forbearance  is  in  the  compromise  of  a 

disputed  claim  made  or  action  brought  in  good  faith  (and  on 
reasonable  grounds),"^  forbearance  to  insist  or  sue  on  the  claim, 
or  further  to  prosecute  the  action,  is  a  sufficient  consideration 
without  regard  to  the  validity  of  the  claim. 

Consideration  may  consist  in  a  forbearance  or  promise  to  forbear 
from  doing  what  one  is  otherwise  entitled  to  do;  as,  for  instance, 
where  a  person  abstains  from  the  use  of  liquor  and  tobacco,  on  another's 
promise  to  pay  him  money."  The  abandonment  of  any  right,  or  a 
promise  to  forbear  from  exercising  it,  is  a  sufficient  consideration  for 
a  promise.''^  The  right  may  be  legal  or  equitable,  certain  or  doubtful; 
and  it  may  exist  against  the  promisor  or  against  a  third  party.'' ^     A 

•As  to  the  qualification  introduced  by  the  words  in  pai-entheses,  post,  p.  124. 

71  Ante,  pp.  113,  114. 

72  Blake  v.  Peck,  11  Vt  483;  Leverenz  v.  Haines,  32  111.  357;  Woodburn  v. 
AVoodburn,  123  111.  608,  14  N.  E.  58,  16  N.  E.  209;  Calkins  v.  Chandler,  36  Mich. 
320,  24  Am.  Rep.  593;  Marshalltown  Stone  Co.  v.  Manufacturing  Co.,  114 
Iowa,  574,  87  N.  W.  496;  Waters  v.  White,  75  Conn.  88,  52  Atl.  401.  Agree- 
ment between  attachment  creditors  of  a  debtor.  Mygatt  v.  Tarbell,  78  Wis. 
351,  47  N.  W.  618;  Doan  v.  Dow,  8  Ind.  App.  324,  35  N.  E.  709;  Brownell  v. 
Harsh,  29  Ohio  St.  631.  Forbearance  to  contest  will.  Rector,  etc.,  of  St 
Mark's  Church,  v.  Teed,  120  N.  Y.  583,  24  N.  E.  1014.  The  release  by  a  per- 
son of  a  claim,  in  good  faith,  of  a  future  contingent  interest  in  certain  land 
under  the  will  of  a  deceased  ancestor,  is  a  sufficient  consideration  for  a  note 
given  tlierefor,  whether  he  in  fact  had  any  interest  in  the  land  or  not.  Brooks 
V.  Wage,  85  Wis.  12,  54  N.  W.  997.  Release  of  mortgage.  Norris  v.  Vos- 
burgh,  98  Mich.  426,  57  N.  W.  264. 

7  3  Release  by  wife  of  inchoate  right  of  dower  will  support  a  promise  by  her 
husband's  grantee  to  pay  her  money.     Worley  v.  Sipe,  111  Ind.  238,  12  N.  E. 


122  CONSIDERATION.  (Ch.  5 

creditor,  if  he  extends  the  time  for  payment  of  the  debt,  gives  up  a 
right,  and  so  furnishes  a  consideration  for  an  additional  promise  by 
the  debtor,'^*  or  for  the  promise  of  a  third  party  to  guaranty  or  pay 
the  debt.^°  So,  also,  the  discharge  of  a  debtor  from  the  debt,^°  or 
from  lawful  imprisonment  for  the  debt,^^  is  a  consideration  for  the 
promise  of  a  third  person  to  pay  the  debt ;  and  the  surrender  or  can- 
cellation of  a  note  or  mortgage  is  a  consideration  for  a  new  note  or 
mortgage.'''^ 

It  has  been  held  that  agreement  to  forbear  is  necessary,  and  that 
mere  forbearance  to  sue,  for  instance,  without  any  agreement  to  that 
effect,  is  not  a  sufficient  consideration  for  the  promise  of  another  to 
pay  the  debt  of  the  person  liable,  though  the  act  of  forbearance  may 
have  been  induced  by  the  promise;  '^^  but  upon  principle  it  seems  that 
actual  forbearance  upon  request  and  in  reUance  upon  the  promise  is 
sufficient.**" 

A  common  form  in  which  a  forbearance  appears  as  the  consideration 
for  a  promise  is  in  the  settlement  or  compromise  of  a  disputed  claim. 
Forbearance  by  a  person  to  insist  upon  a  demand,  or  to  prosecute  an 
action  which  he  has  commenced,  is,  subject  to  exceptions  to  be  presently 
explained,  a  sufficient  consideration.^^ 

385.  Release  of  inchoate  right  of  homestead  in  public  lands  will  support  a 
promise.  McCabe  v.  Caner,  68  Mich.  182,  35  N.  W.  901.  And  see  Paston 
Cattle  Co.  V.  Bank,  21  Neb.  621,  33  N.  W.  271,  59  Am.  Rep.  852. 

7  4  Lipsmeier  v.  Vehslage  (C.  C.)  29  Fed.  175;  Martin  v.  Nixon,  92  Mo.  26,  4 
S.  W.  503;  Van  Gorder  v.  Bank  (Pa.)  7  Atl.  144;  Brown  v.  Bank,  115  Ind. 
572,  18  N.  E.  56;  Lundberg  v.  Elevator  Co.,  42  Minn.  37,  43  N.  W.  685;  Sanders 
V.  Smith  (Miss.)  5  South.  514 ;  Eraser  v.  Backus,  62  Mich.  540,  29  N.  W.  92 ; 
Lodge  V.  Hulings,  63  N.  J.  Eq.  159,  51  Atl.  1015. 

7  5  Calkins  v.  Chandler,  36  Mich.  320,  24  Am.  Rep.  593;  Bank  of  New  Han- 
over V.  Bridgers,  98  N.  C.  67,  3  S.  E.  826,  2  Am.  St.  Rep.  317;  Meyers  v. 
Hockenbury,  34  N.  J.  Law,  346. 

7  6  Whitney  v.  Clary,  145  Mass.  156,  13  N.  E.  393;  Fulton  v.  Loughlin,  118 
Ind.  286,  20  N.  E.  796. 

7  7  SMITH  V.  MONTEITH,  13  Mees.  &  W.  427. 

7  8  Constant  v.  Universits^  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A.  734,  7  Am. 
St.  Rop.  769;   Erie  Co.  Sav.  Bank  v.  Coit,  104  N.  Y.  532,  11  N.  E.  54. 

7  0  MANTER  V.  CHURCHILL,  127  Mass.  31.  And  see  Mecoruey  v,  Stan- 
ley, 8  Cush.  (Mass.)  85;   Shadburne  v.  Daly,  76  Cal.  355,  18  Pac.  403. 

80  CREARS  v.  HUNTER,  19  Q.  B.  Div.  341.  And  see  STRONG  v.  SHEF- 
FIELD, 144  N.  Y.  392,  39  N.  E.  330;  Waters  v.  White,  75  Conn.  88,  52  Atl. 
401. 

81  McKinloy  v.  Watkins,  13  111.  140;  COOK  v,  WRIGHT,  1  Best  &  S.  559; 
CALLISIIER  V.  BISCHOFFSHEIM,  L.  R.  5  Q.  B.  449;  McClellan  v.  Ken- 
nedy, 8  Md.  247;  LONGRIDGE  v.  DORVILLE,  5  Barn.  &  A.  117;  Jones  v. 
Rittenhouse,  87  Ind.  348;  Fisher  v.  May's  Heirs,  2  Bibb  (Ky.)  448,  5  Am.  Dec. 
626;  Hennessy  v.  Bacon,  137  U.  S.  85,  11  Sup.  Ct.  17,  34  L.  Ed.  605;  Sisson  v. 
City  of  Baltimore,  51  IMd.  83;  CROWTHER  v.  FARRER,  15  Q.  B.  677;  NASH 
V,  ARMSTRONG,  10  C.  B.  (N.  S.)  259;  Ileffel finger  v.  Hummel,  90  Iowa,  311, 
57  N.  W.  872 ;    McClure  v.  McClure,  100  Cal.  339,  34  Pac.  822.     The  suit  need 


^§  71-73)  FORBEARANCE   TO   EXERCISE   A   RIGHT.  123 

Illustrations  are  furnished  by  cases  in  which  one  party  makes  a  claim 
or  demand  on  another,  and  the  latter  disputes  it,  whereupon  they  settle 
the  dispute  by  a  compromise,  or  by  agreeing  upon  the  amount  due  in 
an  account  stated.  The  promise  to  pay  the  amount  settled  upon  is 
supported  by  a  sufficient  consideration,  and  may  be  enforced,  though 
the  promisor  might  be  able  to  prove  that  nothing  was  in  fact  due  from 
him.®^     A  compromise  will  support  a  promise  by  a  third  party.^' 

Time  of  Forbearance. 

Questions  have  been  raised  as  to  the  length  of  time  over  which  a  for- 
bearance to  sue  must  extend  in  order  to  constitute  a  consideration.  It 
has  even  been  held  that  a  promise  of  forbearance  for  an  unspecified 
time  was  insufficient,**  but  it  is  now  settled  that  a  promise  of  forbear- 
ance need  not  be  a  promise  of  absolute  forbearance,  nor  even  of  for- 
bearance for  a  definite  time.  V/here  no  time  is  mentioned,  a  reason- 
able time  will  be  implied,  or,  at  any  rate,  where  there  is  a  promise  to 
forbear,  and  actual  forbearance  for  a  reasonable  time,  it  is  enough.®' 

Forbearance  to  do  What  One  Cannot  Legally  do. 

It  is  no  consideration  for  a  promise  for  a  man  to  forbear  or  to  promise 
to  forbear  from  doing  what  he  is  not  legally  entitled  to  do.*°     This 

not  be  actually  discontinued  before  suit  on  tlie  promise.  The  agreement  ends 
it.  Pliillips  V.  Pullen,  50  N.  J.  Law,  439,  14  Atl.  222;  Vau  Campen  v.  Ford, 
53  Hun,  636,  6  N.  Y.  Supp.  139;    Rappanier  v.  Bannon  (Md.)  8  Atl.  555. 

82  Graudin  v.  Grandin,  49  N.  J.  Law,  508,  9  Atl.  756,  60  Am.  Rep.  642;  DUN- 
HAM V.  GRISWOLD,  100  N.  Y.  224,  3  N.  E.  76;  Korne  v.  Korne,  30  W.  Va.  1, 
3  S.  E.  17;  Neibles  v.  Railway  Co.,  37  Minn.  151,  33  N.  W.  332;  Honeymau  v. 
Jarvis,  79  111.  318;  Potts  v.  Polk  Co.,  80  Iowa,  401,  45  N.  W.  775;  Prout  v. 
Fire  Dist,  154  Mass.  450,  28  N.  E.  679 ;  Do  vale  v.  Ackermann,  2  App.  Div.  404, 
37  N.  Y.  Supp.  959.    And  see  post,  p.  124. 

8  3  Bane's  Case  (1611)  9  Coke,  93b.  Withdrawal  of  a  suit  against  a  person, 
for  instance,  will  support  his  father's  note.  Mascolo  v.  Montesanto,  61  Conn. 
50,  23  Atl.  714,  29  Am.  St  Rep.  170. 

84  Semple  v.  Pink,  1  Exch.  74.    See  Payne  v.  Wilson,  7  Barn.  &  C.  423. 

86  OLDERSHAAV  v.  KING,  2  Hurl.  &  N.  399,  517;  ALLIANCE  BANK  V. 
BROOil,  2  Drew.  &  S.  289;  Howe  v.  Taggart  133  Mass.  284;  Eltiug  v.  Van- 
derlyn,  4  Johns.  (N.  Y.)  237;  Bowen  v.  Tipton,  04  Md.  275,  1  Atl.  861;  Calkins 
V.  Chandler,  36  Mich.  320,  24  Am.  Rep.  593;  Moore  v.  McKenney,  83  Me.  80, 
21  Atl.  749,  23  Am.  St.  Rep.  753;  Foard  v.  Grinter's  Ex'rs  (Ky.)  18  S.  W.  1034; 
TRADERS'  NAT.  BANK  v.  PARKER,  130  N.  Y.  415.  29  N.  E.  1094;  Citizens' 
Sar.  Bank  &  Trust  Co.  v.  Babbitts'  Estate,  71  Vt.  182,  44  Atl.  71;  McMicken 
V.  Safford,  197  111.  540,  64  N.  E.  540.  But  see  Garuett  v.  Kirkman,  33  Miss. 
389;  Clark  v.  Russell,  3  Watts  (Pa.)  213,  27  Am.  Dec.  348. 

8  6  In  BARNARD  V.  SIMONS  (1616)  1  Rolle,  Abr.  26,  Langd.  Cas.  Cent  194, 
it  was  said  that  "if  A.  makes  a  void  assumpsit  to  B.,  and  afterwards  a  stran- 
ger comes  to  B.,  and,  in  consideration  that  B.  will  relinquish  the  assumpsit 
made  to  him  by  A.,  he  promises  to  pay  him  £10,  this  is  not  a  good  considera- 
tion to  charge  him,  because  the  first  assumpsit  was  void."  See  Palfrey  v. 
Railroad  Co.,  4  Allen  (Mass.)  55;  Shuder  v.  Newby,  85  Tenn.  348,  3  S.  W.  438; 
Clark  V.  Jones,  85  Ala.  127,  4  South.  771;    Sharpe  v.  Rogers,  12  Minn,  174 


124  CONSIDERATION.  (Ch.  5 

proposition  would  seem  to  be  obvious,  but  questions  have  arisen  in  its 
application,  and  have  given  rise  to  some  conflict  in  the  decisions. 

Some  applications  of  the  principle  are  clear.  A  forbearance  or 
promise  to  forbear,  for  instance,  from  claims  under  an  illegal  contract, 
such  as  a  gambling  contract,  or  a  contract  involving  the  commission 
of  crime,  can  form  no  consideration  for  the  promise  of  the  other  party, 
since  the  contract  is  void,  and  could  not  be  enforced.^^  So,  also,  the 
release  of  a  debtor  from  imprisonment  was  held  to  be  no  consideration 
for  a  promise  where,  by  the  previous  release  of  a  codebtor,  the  debt 
had  been  discharged,  since  the  imprisonment  was  therefore  unlawful.®* 
So  a  promise  to  pay  rent,  made  solely  to  prevent  an  unlawful  eviction, 
is  without  consideration.*^ 

As  a  general  rule,  it  is  safe  to  say  that,  in  order  that  forbearance  to 
exercise  a  right  may  constitute  a  consideration,  the  right  must  be  at 
least  doubtful.  Forbearance  to  insist  upon  a  claim  that  is  clearly 
unenforceable,  at  least  if  it  be  known  to  the  claimant  to  be  such,  cannot 
be  a  consideration. 

Compromises. 

In  respect  to  compromises  of  disputed  claims  and  actions,  the  author- 
ities are  all  agreed  that  the  promisee  must  believe  in  his  claim,  or  in 
his  action ;  and  that  forbearance  to  sue  on  a  demand  known  to  be 
unenforceable,  or  to  proceed  in  an  action  knowingly  brought  without 
cause,  is  no  consideration.""  When  we  reach  this  point,  the  difficulty 
begins.  In  a  leading  English  case  it  was  said :  "If  he  bona  fide  be- 
lieves he  has  a  fair  chance  of  success,  he  has  a  reasonable  ground  for 
suing,  and  his  forbearance  to  do  so  will  constitute  a  good  consideration. 
When  such  a  person  forbears  to  sue,  he  gives  up  what  he  believes  to 
be  a  right  of  action,  and  the  other  party  gets  an  advantage,  and,  instead 
of  being  annoyed  with  an  action,  he  escapes  from  the  vexations  incident 
to  it.     *     *     *     It   would  be  another  matter   if  a  person   made  a 

(Gil.  103):  Harris  v.  Cassady,  107  Ind.  15S,  8  N.  E.  29;  Ecker  v.  McAllister, 
54  Md.  .SG9;  Schroeder  v.  Fink,  60  Md.  438;  Long  v.  Towl,  42  Mo.  545,  97  Am. 
Dec.  355;  Martin  v.  Black,  20  Ala.  309;  Prater  v.  Miller,  25  Ala.  320,  60  Am. 
Dec.  521;  Davisson  v.  Ford,  23  W.  Va.  617;  Eblin  v.  Miller's  Ex'rs,  78  Ky.  371. 
Many  of  these  cases,  however,  in  conflict  with  what  is  perhaps  the  prevailing 
rule,  maintain  that  forbearance  to  sue  on  an  invalid  claim,  though  honestly  be- 
lieved in,  is  no  consideration.    Post,  p.  125. 

8  7  Everiugham  v.  Meighau,  55  Wis.  354,  13  N.  W.  269. 

88  HERRING  V.  DORELL,  8  Dowl.  Pr.  Cas.  604. 

89  Smith  V.  Coker,  110  Ga.  654,  36  S.  E.  107;  TOLHURST  v.  POWERS,  133 
N.  Y.  460,  31  N.  E.  320  [surrender  of  what  promisee  has  no  right  to  retain]. 

90  WADE  V.  SIMEON,  2  C.  B.  548;  McKinley  v.  Watkins,  13  111.  140;  Rood 
V.  Joaies,  1  Doug.  (Mich.)  188;  McGlynn  v.  Scott,  4  N.  D.  18,  58  N.  W.  460; 
Phillips  v.  Pullen,  50  N.  J.  Law,  439,  14  Atl.  222;  Von  Brandenstein  v.  Ebens- 
bergor,  71  Tex.  267,  9  S.  W.  153;  Domars  v.  Manufacturing  Co.,  37  Minn.  418, 
35  N.  W.  1;  Taylor  v.  Weeks,  129  Mich.  233,  88  N.  W.  466. 


§^  71-73)  FOKBEAKANCE    TO   EXERCISE   A    RIGHT.  125 

claim  which  he  knew  to  be  unfounded,  and  by  a  compromise  derived 
an  advantage  under  it;  in  that  case  his  conduct  would  be  fraudulent."®^ 
And  in  a  later  case  it  was  said:  "If  there  is  in  fact  a  serious  claim 
honestly  made,  the  abandonment  of  the  claim  is  a  good  consideration. 
*  *  *  Now,  by  'honest  claim,'  I  think  is  meant  this :  that  a  claim  is 
honest  if  the  claimant  does  not  know  that  his  claim  is  unsubstantial, 
or  if  he  does  not  know  facts,  to  his  knowledge  unknown  to  the  other 
party,  which  show  that  his  claim  is  a  bad  one."  °^  These  cases  thus 
allow  the  whole  question  to  depend  on  the  good  faith  of  the  party  for- 
bearing, without  any  regard  whatever  to  the  validity  of  his  claim. 

Admitting  that  forbearance  from  what  one  is  not  legally  entitled  to 
do  is  no  consideration,  it  may  be  said  that  one  has  a  right  to  assert 
or  litigate  a  claim  in  which  he  believes,  and  that  forbearance  from  this 
right  is  a  consideration. 

The  English  rule  is  supported  by  many  of  the  American  decisions,"^ 
although  many  of  them  insist  that  there  must  be  reasonable  ground  for 
belief  in  the  validity  of  the  claim.*  Some  cases,  however,  appear  to 
hold  that  forbearance  to  prosecute  an  invalid  claim,  though  honestly 
believed  in,  is  no  consideration.** 

81  CALLISHBR  v.  BISCHOFFSHEIM,  L.  R.  5  Q.  B.  449.  See,  also,  COOK 
V.  WRIGHT,  1  B.  &  S.  5.59. 

02  MILES  V.  NEW  ZEALAND,  ETC.,  CO.,  32  Ch,  D.  266,  per  Cotton,  L.  J. 

93  Crans  v.  Hunter,  28  N.  Y.  389;  Zoebisch  v.  Von  Minden,  120  N.  Y.  406, 
24  N.  E.  795;  Grandin  v.  Grandin,  49  N.  J.  Law,  9  Atl.  756,  60  Am.  Rep.  642; 
Rue  V  Meirs,  48  N  J.  Eq.  377,  12  Atl.  369;  BELLOWS  v.  SOWLES,  55  Vt. 
391,  45  Am.  Rep.  291;  Hewett  v.  Currier,  63  Wis.  386,  23  N.  W.  884;  Appeal 
of  Gormley,  130  Pa.  467,  18  Atl.  727;  Hansen  v.  Gaar,  Scott  &  Co.,  63  Minn. 
94,  65  N.  W.  254;  Dl  lorio  v.  Ui  Brasio,  21  R.  I.  208,  42  Atl.  1114;  Hanchett 
V.  Ives,  171  111.  122,  49  N.  B.  206;  Rowe  v.  Barnes,  101  Iowa,  302,  70  N.  W. 
197;    GALUSH^.  v.  SHERMAN,  105  Wis.  263,  81  N.  W.  495,  47  L.  R.  A.  417. 

*MumoHand  v.  Bartlett,  74  111.  58;  Bates  v.  Sandy,  27  111.  App.  552;  United 
States  Mortgage  Co.  v.  Henderson,  111  Ind.  24,  12  N.  E.  88;  Russell  v.  Wright, 
98  Ala.  652,  13  South.  594;  FINK  v.  SMITH,  170  Pa.  124,  32  Atl.  566,  50  Am. 
St.  Rep.  750. 

•  ♦♦Palfrey  v.  Railroad  Co.,  4  Allen,  55;  Schroeder  v.  Fink,  60  Md.  43G; 
Emmittsburg  R.  v.  Donoghue,  67  Md.  383,  10  Atl.  233,  1  Am.  St.  Rep.  396; 
Davisson  v.  Ford,  23  W.  Va.  613;  CLINE  v.  TEMPLETON,  78  Ky.  550;  GUN- 
NINGS V.  ROYAL,  59  Miss.  45,  42  Am.  Rep.  350;  Price  v.  Bank,  62  Kan.  743, 
64  Pac.  639. 


i26       ^  CONSIDERATION.  (Ck  & 

^^  SAME— DOING  WHAT  OT^J  IS  BOUND  TO  DO. 

74.  IN   GENERAL.    Doing  or  promising  what  one   is  already  legally 

bound  to  do  is,  as  a  rule,  no  consideration.  Such,  previous  obli- 
gation may  arise 

(a)  By  virtue  of  a  prior  contract,  or 

(b)  By    latv,    independently    of    contract. 

75.  ADDITIONAL  COMPENSATION.    In  some  jurisdictions,  a  prom- 

ise to  perform,  or  performance  of,  an  existing  contract,  is  held 
to  be  consideration  for  a  promise  by  the  other  party  to  pay  ad- 
ditional compensation;  and  in  some  jurisdictions  such  promise 
to  perform  or  performance  is  held  to  be  consideration  for  a 
promise  by  a  third  person  to  pay  additional  compensation. 

76.  Under  the  general  rule,  payment  of  part  of  a  debt  is  no  considera- 

tion for  a  discharge  of  the  debt. 

Another  form  of  unreality  of  consideration  is  where  the  alleged  con- 
sideration is  a  promise  to  do,  or  actually  doing,  what  a  person  is  already 
bound  to  do.  The  promisor  gets  no  more  in  return  for  his  promise 
than  the  promisee  was  already  bound  to  give,  and  therefore  receives 
no  consideration.^*  Such  prior  obligation  may  arise  (i)  from  a  pre- 
vious contract,  or  (2)  from  law,  independently  of  contract. 

94  Conover  v.  Stillwell,  34  N.  J.  Law,  54;  Jennings  v.  Chase.  J.0  Allen  (Mass.; 
526;  WAKREN  V.  HODGE,  121  Mass.  106;  SCHULER  v.  MYTON,  48  Kan. 
'282.  29  Pac.  163;  Holmes  v.  Boyd,  90  Ind.  332;  Keffer  v,  Grayson,  76  Va.  517, 
44  Am.  Rep.  171;  Harris  v.  Cassaday,  107  Ind.  158,  8  N.  E.  29;  Stuber  v. 
Schack,  S3  111.  191;  Pboeuis  Ins.  Co.  v.  Rink,  110  111.  538;  Harriman  v.  Harri- 
man,  12  Gray  (Mass.)  341;  Tucker  v.  Bartle,  85  Mo.  114;  Eblin  v.  Miller's 
Ex'rs,  78  Ky.  371;  Sberwin  v.  Brigliam,  39  Ohio  St.  137;  Watts  v.  Frenche,  19 
N.  J.  Eq.  407;  Bush  v.  Rawlins,  89  Ga.  117,  14  S.  E.  886;  Jenness  v.  Lane,  26 
Me.  475;  Wendover  v.  Baker,  121  Mo.  273,  25  S.  W.  918;  ABEND  v.  SMITH, 
151  N.  Y.  502,  45  N.  E.  872;  Allen  v.  Plasmeyere  (Neb.)  90  N.  W.  1125;  Bar- 
ringer  V.  Ryder,  119  Iowa.  121,  93  N.  W.  56;  Westcott  v.  Mitchell,  95  Me.  377, 
50  Atl.  21.  On  this  principle,  a  promise  by  a  creditor  after  maturity  of  the 
debt,  to  extend  the  time  of  payment,  is  not  binding  unless  some  collateral 
consideration  is  rciceived.  Hoffman  v.  Coombs,  9  Gill  (Md.)  284;  TuiTibull  v. 
Brock,  31  Ohio  St.  649;  Pfeiffer  v.  Campbell,  111  N.  Y.  631,  19  N.  E.  498; 
Holmes  v.  Boyd,  90  Ind.  332;  Ives  v.  Bosley,  35  Md.  262,  6  Am.  Rep.  411; 
Helms  V.  Crane,  4  Tex.  Civ.  App.  89,  23  S.  W.  392;  Skinner  v.  Mining  Co. 
(C.  C.)  96  Fed.  735.  A  promise  to  extend  in  consideration  of  a  promise  to  pay 
the  debt  with  interest  at  the  same  rate  is  without  consideration.  Kellogg  v. 
Olmstead,  25  N.  Y.  189;  Olmstead  v.  Latimer,  158  N.  Y.  313,  53  N.  E.  5,  43 
L.  R.  A.  685;  Wilson  v.  Powers,  130  Mass.  127;  Holmes  v.  Boyd,  90  Ind.  332; 
Price  V.  Mitchell,  23  Wash.  742,  63  Pac.  514. 

It  has  been  held,  however,  that  a  promise  to  extend  is  supported  by  a 
promise  to  pay  interest  at  the  same,  or  even  a  less  rate,  for  a  certain  time,, 
since  the  debtor  foregoes  his  right  to  pay  before  that  time.  Fawcett  v.: 
Freshwater,  31  Ohio  St  637;  Fowler  v.  Brooks,  13  N.  H.  240;  Simpson  v.  ' 
Evans,  44  Minn.  419,  46  N.  W.  908.  See,  also,  Moore  y.  Redding,  69  :,ILs3. 
841,  13  South.  819. 


§§  74-76)  DOING   WHAT   ONE   IS   BOUND   TO   DO.  127 

Where,  for  instance,  a  seaman  deserted  a  vessel,  and  the  captain 
promised  the  rest  of  the  crew  extra  pay  if  they  would  work  the  vessel 
home,  the  promise  was  held  to  be  without  consideration,  because  the 
seamen  had,  before  sailing,  agreed  to  do  all  they  could  under  all  the 
emergencies  of  the  voyage,  and  the  desertion  by  some  of  the  seamen 
was  an  emergency.  Here  the  seamen  promised  no  more  than  their 
contract  bound  them  to  do.^^  Where  a  public  officer  is  required  by  law 
to  make  an  arrest,  a  promise  by  an  individual  to  pay  him  for  doing  so 
is  without  consideration ;  ^^  and  so  it  is  with  a  promise  to  pay  a  public 
officer  or  a  witness  extra  compensation  for  performing  services  for 
which  his  fees  are  fixed  by  law.®^  In  these  cases  the  officer  or  wit- 
ness does  no  more  than  he  is  required  by  law  to  do,  and  therefore  gives 
no  consideration.  Of  course,  it  is  otherwise  with  agreements  to  pay 
officers  for  doing  something  beyond  the  scope  of  their  official  duties.^* 
The  doctrine  also  applies  to  a  promise  to  do  or  doing  what  one  may  be 
compelled  to  do  in  equity.^ ^  It  will  be  seen  from  the  cases  mentioned 
that  the  actual  performance  of  that  which  a  man  is  legally  bound  to  do 
stands  on  the  same  footing  as  his  promise  to  do  what  he  is  legally  com- 
pellable to  do. 

The  rule  above  stated  would  seem  to  be  an  obvious  result  of  the 
doctrine  of  consideration,  but  some  of  its  applications  have  met  with 
severe  criticism,  and  there  is  much  direct  conflict  in  the  decisions  on  the 
subject. 

Mutual  Discharge  and  Substituted  Agreement — Additional  Compen- 
sation. 
In  the  case  of  a  contract  which  is  wholly  executory, — that  is,  a  con- 
tract in  which  there  is  something  to  be  done  on  both  sides, — it  can,  as 
we  shall  see  in  treating  of  discharge  of  contract,  be  discharged  by 

8B  STILI<:  V.  MEYraCK,  2  Camp.  317.  See,  also.  Harris  v.  Carter,  3  El.  & 
Bl.  559;  BARTLETT  v.  WYMAN,  14  Johns.  (N.  Y.)  260;  VANDERBILT  v. 
'SCHREYER,  91  N.  Y.  392.  It  would  have  been  different  if  risks  had  arisen 
which  were  not  contemplated  by  the  contract.  For  instance,  such  a  contract 
as  in  the  case  cited  contains  an  implied  warranty  that  the  ship  shall  be  sea- 
worthy. So,  where  a  seaman  had  signed  articles  of  agreement  to  navigate  a 
vessel,  and  the  vessel  proved  unseaworthy,  a  promise  of  exti'a  pay  to 
induce  him  to  abide  by  his  contract  was  held  binding.  Turner  v.  Owen,  3 
Fost.  &  F.  177. 

8  8  SMITH  V.  WHILDIN,  10  Pa.  39,  49  Am.  Dec.  572;  Hogan  v.  Stophlet,  179 
111.  150,  53  N.  E.  604,  44  L.  R.  A.  809.    See  post,  p.  283. 

8  7  See  Lucas  v.  Allen,  80  Ky.  GSl;  Hatch  v.  Mann,  15  Wend.  (N.  T.)  45. 
Since  a  witness,  however,  cannot  be  compelled  to  attend  in  another  state, 
a  party's  promise  of  extra  compensation  to  induce  him  to  attend  is  binding. 
Armstrong  v.  Prentice.  86  Wis.  210,  56  N.  W.  742. 

88  ENGLAND  V.  DAVIDSON,  11  Adol.  &  E.  856;  McCandless  v.  Steel  Co., 
152  Pa.  139,  25  Atl.  579;  Studley  v.  Ballard,  169  Mass.  295,  47  N.  E.  1000,  61 
Am.  St.  Rep.  286. 

«8  Robinson  v.  Jewett,  116  N.  Y.  40,  22  N.  E.  224. 


128  "  CONSIDERATION.  (Cb.  5 

mutual  consent.  The  acquittance  of  each  from  the  other's  claims  in 
such  a  case  is  the  consideration  of  each  to  waive  his  own.^°°  If  parties 
can  so  discharge  the  contract,  it  follows  that  they  may  substitute  a 
new  contract  in  its  place.  Suppose,  however,  that  one  of  the  parties 
to  a  contract  refuses  to  perform,  because  he  finds  that  he  must  suffer 
a  loss  by  performance;  and  suppose  the  other  party  wishes  perform- 
ance, and  requires  it  to  prevent  serious  loss.  Would  a  promise,  made 
by  him  in  order  to  induce  the  other  to  perform,  of  more  than  he  was 
liable  to  pay  or  do  under  the  original  contract,  be  binding,  or  would 
it  be  void,  on  the  ground  that  the  only  consideration  for  it  is  the 
promise  by  the  other  to  perform  the  original  contract, — a  thing  which 
he  was  already  bound  to  do?  The  courts  differ  in  their  answers  to 
this  question.  Some  of  them  hold  that  the  promise  is  without  consid- 
eration and  void.^°^ 

This,  on  principle,  would  seem  to  be  the  proper  doctrine,  but  many 
courts  hold  outright  that,  even  where  there  is  nothing  more  than 
refusal  on  the  part  of  one  party  to  perform,  a  new  agreement,  in  which 
the  other,  to  induce  him  not  to  break,  but  to  go  on  with,  his  contract, 
promises  to  pay  him  a  larger  sum  than  originally  promised,  at  least  if  it 
is  in  substitution  of  the  original  contract,  is  binding.^" ^  Some  of  the 
courts  base  their  decision  on  the  ground  that  a  person  who  has  entered 
into  a  contract  is  entitled  to  choose  between  going  on  with  it  at  a  loss 
and  the  risk  of  an  action  by  the  other  party  for  the  breach.  This 
might  be  a  sound  doctrine  if  a  contract  were,  according  to  Mr.  Justice 
O.  W.  Holmes,  Jr.'s,  conception  of  it,  the  mere  taking  of  a  risk ;  that 
is,  if  a  party  must  be  held  to  contemplate,  when  he  gives  a  promise, 
not  its  performance,  but  the  payment  of  damages  for  its  breach,  or 


100  Post,  p.  420. 

101  VANDEEBILT  T.  SCHREYER,  91  N.  Y.  392;  Reynolds  V.  Nugent,  25 
Ind.  328;  Erb  v.  Brown,  69  Pa.  216;  AYRES  v.  RAILWAY  CO.,  52  Iowa,  478, 
3  N.  W.  522;  McCarthy  v.  Association,  61  Iowa,  287,  16  N.  W.  114;  Cobb  v. 
Cowdery,  40  Vt.  25,  94  Am.  Dec.  370;  KEITH  v.  MILES,  39  Miss.  442,  77  Am. 
Dec.  685;  Gaar,  Scott  &  Co.  v.  Green,  6  N.  D.  48,  68  N.  W.  318;  Jones  v.  Ris- 
ley,  91  Tex.  1,  32  S.  W.  1027;  Main  St.  &  A.  P.  R.  Co.  v.  Traction  Co.,  129  Cal.' 
301,  61  Pac.  937;  Westcott  v.  Mitchell,  95  Me.  377,  50  Atl.  21;  Alaska  Pack- 
ers' Ass'n  V.  Domeuico,  117  Fed.  99,  54  C.  C.  A.  485.  See,  also,  King  v.  Rail- 
way Co.,  61  Minn.  482,  63  N.  "W.  1105,  which  holds  that  the  promise  in  such 
case  is  without  consideration,  unless  the  refusal  was  induced  by  substantial 
and  unforeseen  difficulties,  which  would  cast  upon  the  party  additional  bur- 
dens not  anticipated  when  the  contract  was  made. 

102  MUNROE  V.  PERKINS,  9  Pick.  (Mass.)  298,  20  Am.  Dec.  475;  ROLLINS 
V.  MARSH,  128  Mass.  116;  Osborne  v.  O'Reilly,  42  N.  J.  Eq.  467,  9  Atl.  209; 
Moore  v.  Detroit  Loc.  Works,  14  Mich.  206;  GOEBEL  v.  LINN,  47  Mich.  489, 
11  N.  W.  284,  41  Am.  Rep.  723;  COYNER  v.  LYNDB,  10  Ind.  282;  Cooke  v. 
Murphy,  70  111.  96;  Connelly  v.  Devoe,  37  Conn.  570;  Lawrence  v.  Davey,  28 
Vt.  264;  LATTIMORE  v.  HARSEN,  14  Johns.  (N.  Y.)  330;  Foley  v.  Storrie,  4 
Tex.  Civ.  App.  377,  23  S.  W.  442. 


§§  74r-76)  DOING   WHAT   ONE   IS  BOUND   TO   DO.  129 

performance,  at  his  option,  according  as  the  one  or  the  other  may  see 
the  more  to  his  interest  in  the  Hght  of  future  developments.  Such, 
however,  does  not  seem  the  proper  conception  of  contract.  Certainly, 
as  a  rule,  when  a  man  makes  a  contract,  he  does  so  with  the  intention 
of  performing  it,  and  with  the  expectation  of  performance  by  the 
other  party.  It  cannot  be  that  a  contract  is  nothing  more  than  a  mere 
gambling  transaction, — a  mere  bet  on  its  performance.  To  allow  a 
man  who  has  promised,  on  a  sufficient  consideration,  to  repudiate  his 
promise  when  he  finds  that  he  is  to  suffer  loss,  and  force  the  other 
party  to  pay  an  additional  sum  in  order  to  obtain  what  he  is  already 
entitled  to,  encourages  breacli  of  contract  and  breach  of  faith. 

As  we  shall  presently  see,  a  different  rule  than  that  stated  at  the 
beginning  of  this  paragraph  applies  where  the  contract  is  wholly  exe- 
cuted on  one  side. 

Promise  to  Third  Person  to  Perform  Existing  Contract. 

In  England  and  Massachusetts  it  has  been  held  that  if  a  man  is  bound 
by  a  contract  to  do  a  particular  thing,  and,  while  it  is  doubtful  whether 
he  will  do  it,  a  third  person  promises  to  pay  him  if  he  will  do  it,  his 
performance  will  constitute  a  sufficient  consideration  for  the  third 
party's  promise. ^''^  It  is  difficult,  if  not  impossible,  to  reconcile  such 
a  case  with  the  general  rule  which  we  have  stated,  or  to  find  any  reason 
for  such  an  exception.  In  this  country  the  contrary  has  been  generally 
held.io* 

Part  Payment  in  Satisfaction  of  Debt. 

Under  the  rule  we  have  been  discussing,  the  simple  payment  of  a 
smaller  sum  in  satisfaction  of  a  larger  is  not  a  good  discharge  of  a 
debt,  for  it  is  doing  no  more  than  the  debtor  is  already  bound  to  do, 
and  is  therefore  no  consideration  for  the  creditor's  promise  to  forego 
the  residue.^""     If,  for  instance,  a  person  owes  another  $i,ooo,  the 

103  Shadwell  v.  Shadwell,  9  C.  B.  (N.  S.)  159;  Scotson  v.  Pegg,  6  Hurl.  &  N. 
295;  ABBOTT  v.  DOANE,  1G3  Mass.  433,  40  N.  E.  197,  34  L.  R.  A.  33,  47  Am. 
St.  Rep.  465;  Cf.  Grant  v.  Railway  Co.,  61  Minn.  395,  63  N.  W.  1026.  See  12 
Harv.  L.  R.  520, 

104  JOHNSON'S  ADM'R  V.  SELLERS'  ADM'R,  33  Ala.  265;  Putnam  v. 
Woodbury,  68  Me.  58;  L'Amoreux  v.  Gould,  7  N.  Y.  349,  57  Am.  Dec.  524; 
Peelman  v.  Peelman,  4  Ind.  612;  MERRICK  v.  GIDDINGS,  1  Mackey  (D.  C.) 
394;  Davenport  v.  Society,  33  Wis.  387;  Gordon  v.  Gordon,  56  N.  H.  170; 
Hanks  v.  Barron,  95  Tenn.  275,  32  S.  W.  195;  Havana  Press  Drill  Co.  v. 
Ashurst,  148  111.  115,  35  N.  E.  873.  See,  also,  Brownlee  v.  Lowe,  117  Ind.  420, 
20  N.  E.  301. 

105  Pinnel's  Case,  5  Coke,  117a;  Cumber  v.  Wane,  1  Strange,  42G,  1  Smith, 
Lead.  Cas.  439;  JAFFRAY  v.  DAVIS.  124  N.  Y.  l&l,  26  N.  E.  351,  11  L.  R.  A. 
710  (collecting  cases);  Harriman  v.  Harriman,  12  Gray  (Mass.)  341;  Bailey  v. 
Day,  26  Me.  88;  Goodwin  v.  Follett.  25  Vt.  386;  Barron  v.  Vandvert,  13  Ala. 
2.32;  Hayes  v.  Insurance  Co.,  125  111.  626,  18  N.  E.  322,  1  L.  R.  A.  303;  Harri- 
son V.  Close,  2  Johns.  (N.  Y.)  448,  3  Am.  Dec.  444 ;   BENDER  v.  BEEN,  78  Iowa, 

Clark  Cont.  (2d  Ed.) — 9 


130  CONSIDERATION.  (Ch.  5 

payment  of  which  may  be  demanded  at  once,  a  promise  by  the  creditor 
to  take  $500  in  full,  and  its  payment,  will  not  prevent  his  afterwards 
recovering  the  other  $500. 

This  rule  has  been  much  criticised,^"'  but  is  well  established,^"^ 
although  in  some  states  it  is  subject  to  exceptions,  real  or  apparent. ^°^ 
Thus  it  has  been  held  that  since  a  person  may,  if  he  choose,  make  a 
gift  to  another  which  when  accepted  will  be  irrevocable,  a  creditor  may, 
on  receiving  part  of  the  debt,  forgive  the  debtor  the  residue,  and  that 
a  receipt  in  full  may  be  evidence  of  such  forgiveness.^"®  In  some 
states  the  rule  has  been  changed  by  statute  so  that  acceptance  of  a  less 
sum  in  satisfaction  of  a  debt  is  a  discharge.^^" 

Since  a  contract  under  seal  requires  no  consideration,  a  creditor,  on 
receiving  part  payment  of  his  debt,  may  release  the  residue  by  an  instru- 
ment under  seal.^^^ 


283,  43  N.  W.  216,  5  L.  R.  A.  649;  Leeson  v.  Anderson,  99  Mich.  247,  58  N.  W. 
72,  41  Am.  St.  Rep.  597;  Bryan  v.  Foy,  69  N.  C.  45;  Carlton  v.  Railroad  Co.,  81 
Ga.  531,  7  S.  E.  623;  Liening  v.  Gould,  13  Cal.  598;  Watts  v.  Frenche,  19  N.  J. 
Eq.  407;  Beaver  v.  Fulp,  136  Ind.  595,  36  N.  E.  418;  Lankton  v.  Stewart,  27 
Minn.  346,  7  N.  W.  360;  Willis  v.  Gammill,  67  Mo.  730;  St.  Louis,  F.,  S.  &  W. 
R.  Co.  V.  Davis,  35  Kan.  464,  11  Pac.  421;  Reynolds  v.  Reynolds,  55  Ark.  369, 
18  S.  W.  377;  Emmittsburg  R.  Co.  v.  Donoghue,  67  Md.  383,  10  Atl.  233,  1  Am. 
St.  Rep.  396;  Tyler  v.  Association,  145  Mass.  134,  13  N.  E.  360;  Mcintosh  v. 
Johnson,  51  Neb.  33,  70  N.  W.  522.  And  see  cases  cited  in  note  94,  supra. 
For  the  same  reason,  a  promise  to  take  less  than  the  sum  due  is  also  with- 
out consideration.  McKenzie  v.  Culbreth,  66  N.  C.  534;  FOAKES  v.  BEER, 
L.  R,  9  App.  Cas.  605;  Rose  v.  Daniels,  8  R.  I.  381;  Smith  v.  Phillips,  77  Va. 
548;  Bryan  v.  Brazil,  52  Iowa,  350,  3  N.  W.  117;  Hart  v.  Stiong,  183  111.  349, 
55  N.  E.  629.  Nor  is  part  payment  any  consideration  for  an  agreement  to 
extend  the  time  for  payment  of  the  residue.  Holliday  v.  Poole,  77  Ga.  159; 
Liening  v.  Gould,  13  Cal.  598;  Barron  v.  Vandvert,  13  Ala.  232;  Turnbull  v. 
Brock,  31  Ohio  St.  649.    And  see  post,  p.  491. 

106  See  Two  Theories  of  Consideration  by  Prof.  James  Barr  Ames,  12 
Harv.  L.  R.  515,  525;  Chicago,  M.  &  St.  P.  Ry.  v.  Clark,  178  U.  S.  353,  20 
Sup.  Ct.  924,  44  L.  Ed.  1099. 

107  The  contrary  has  been  held  in  Mississippi.  CLAYTON  v.  CLARK,  74 
Miss.  499,  21  South.  565,  37  L.  R.  A.  771,  00  Am.  St.  Rep.  521. 

108  One  or  two  cases  make  an  exception  where  the  debtor  Is  insolvent. 
Sholton  V.  Jackson,  20  Tex.  Civ.  App.  443,  49  S.  W.  415;  Rice  v.  Mortgage  Co., 
70  Minn.  77,  72  N.  W.  826  (believed  to  be  insolvent). 

100  McKenzie  v.  Harrison,  120  N.  Y.  260,  24  N.  E.  458,  8  L.  R.  A.  257,  17 
Am.  St  Rep.  638;  Green  v.  Langdon,  28  Mich.  121;  Tyler  Cotton  Press  Ca 
V.  Chevalier,  56  Ga.  494.  See,  also,  Lamprey  v.  Lamprey,  29  Minn.  151,  12  N. 
W.  514.  A  receipt  "in  full  of  all  demands,"  given  because  the  other  party 
refused  to  pay  more  without  it,  held  binding.  FLYNN  v.  HURLOCK,  194 
Pa.  462,  45  Atl.  312. 

110  Tlddy  v.  Harris,  101  N.  C.  589,  8  S.  E.  227;  Jones  v.  Wilson,  104  N.  C. 
9,  10  S.  E.  79. 

111  Bender  v.  Sampson,  11  Mass.  42;  Willing  v.  Peters,  12  Serg.  &  R.  (Pa.) 
177;  Ingersoll  v.  Martin,  58  Md.  07,  42  Am.  Rep.  322;  Spitze  v.  Railroad  Co., 
75  Md.  102,  23  Atl.  307,  32  Am.  St.  Rep.  378. 


74-76)  DOING   WHAT   ONE   IS   BOUND  TO   DO,       CC-/ ;  ;         131 

Same — Consideration  for  Release  of  Residue. 

The  rule  that  part  payment  of  a  debt  does  not  discharge  the  debtor 
does  not  apply  where  the  creditor,  in  addition  to  the  part  payment, 
receives  something  else  which  the  law  regards  of  value,  or,  in  other 
words,  where,  in  the  thing  done  or  given,  he  receives  something  differ- 
ent in  kind  from  that  which  he  is  entitled  to  demand;  "'^  and  if  the 
difference  is  real,  so  that  something  of  value  is  superadded  to  the  part 
payment,  the  fact  that  the  difference  or  the  value  superadded  is  slight 
will  make  no  difference,  for,  as  we  have  seen,  the  courts  will  not  deter- 
mine the  adequacy  of  the  consideration.  If  a  man  sells  and  becomes 
bound  to  deliver  to  another  two  particular  horses,  delivering  one  of 
them  will  not  sustain  a  promise  by  the  buyer  not  to  require  delivery  of 
the  other;  but  it  would  be  otherwise  if  the  buyer  agreed  to  receive 
some  other  particular  horse  or  cow  in  discharge  of  the  contract,  though 
it  might  be  of  comparatively  little  value.  A  money  debt  may  be  dis- 
charged by  the  giving  of  a  negotiable  instrument  for  a  less  sum  than 
due,  or,  as  said  in  an  old  English  case,  "the  gift  of  a  horse,  hawk,  or 
robe,  etc.,  in  satisfaction,  is  good ;  for  it  shall  be  intended  that  a  horse, 
hawk,  or  robe,  etc.,  might  be  more  beneficial  to  the  plaintiff  than 
money,  in  respect  of  some  circumstance,  or  otherwise  the  plaintiff 
would  not  have  accepted  of  it  in  satisfaction."  ^^^ 

If  the  debtor  gives,  and  the  creditor  receives,  in  full  satisfaction  of 
the  debt,  the  note  of  a  third  person  for  a  smaller  sum  than  the  amount 
of  the  debt,  there  is  a  sufficient  consideration  for  his  promise  to  forego 
the  residue ;  ^^*  and  so  it  is  where  the  smaller  sum  agreed  to  be  taken 
is  guarantied,  or  a  note  therefor  is  indorsed,  by  a  third  person;  ^^"^  or 
where  the  smaller  sum  is  paid  before  the  debt  is  due,  or  at  a  different 
place  than  required  by  the  contract;  ^^®  or  where  a  note  secured  by  a 
mortgage  is  given  for  the  smaller  sum.^^' 

112  JAFFRAY  V.  DAVIS,  124  N.  Y.  16i,  26  N.  E.  351,  11  U  R.  A.  710;  Day 
V.  Gardner,  42  N.  J.  Eq.  199,  7  Atl.  365;  Stacy  v.  Cook,  G2  Kan.  50,  61  Pac.  399. 

lis  Pinnel's  Case,  5  Coke,  117a.  And  see  Hasted  v.  Dodge  (Iowa)  35  N.  W. 
462. 

114  Brooks  V.  White,  2  Mete.  (Mass.)  283,  37  Am.  Dec.  95;  Kellogg  v.  Rich- 
ards, 14  Wend.  (N.  Y.)  116;  Sanders  v.  Bank,  13  Ala.  353;  Hardesty  v.  Gra- 
ham (Ky.)  3  S.  W.  909.    Check  of  third  person.    Guild  v.  Butler,  127  Mass.  386. 

115  Steinman  v.  Magnus,  11  Eiast,  390;  Singleton  v.  Thomas,  73  Ala.  205; 
.Tenness  v.  Lane,  26  Me.  475;  Maddux  v.  Bevan,  39  Md.,  at  page  499;  Boyd 
V.  Hitchcock,  20  .Johns.  (N.  Y.)  7G,  11  Am.  Dec.  247:  Varney  v.  Conery,  77  Me. 
527,  1  Atl.  683;    Mason  v.  Campbell,  27  Minn.  54,  6  N.  W.  405. 

118  Pinnel's  Case,  5  Coke,  117a;  Brooks  v.  White,  2  Mete.  (Mass.)  283,  37 
Am.  Dec.  95;  Harper  v.  Graham,  20  Ohio,  105;  SCHWEIDER  v.  LANG,  29 
Minn.  254.  13  N.  W.  33,  43  Am.  Rep.  202;  McKenzie  v.  Culbreth,  66  N.  C.  534; 
Jones  V.  Perldns,  29  Miss.  139,  64  Am.  Dec.  136;  Reid  v.  Hibbard,  6  Wis.  175; 
Chicora  Fertilizer  Co.  v.  Dunan,  91  Md.  144,  46  Atl.  347,  50  L.  R.  A.  401.  Cf, 
Saunders  v.  Whitcomb,  177  Mass.  457,  59  N.  E.  192. 

117  JAFFRAY  V.  DAVIS,  124  N.  Y.  164,  26  N.  E.  351,  11  L.  R.  A.  710;  Post 
V.  Bank,  137  111.  559,  28  N.  E.  978. 


132  CONSIDERATION.  (Oil.  5 

Same— Unliquidated  Claim. 

The  rule  that  payment  of  less  than  the  amount  claimed  is  no  con- 
sideration for  a  discharge  applies  only  when  the  sum  due  is  definite 
and  certain.  The  payment  of  less  than  the  amount  claimed,  if  the  sum 
due  is  unliquidated,  is  a  good  consideration  for  the  releaee.^^^  This 
proceeds  upon  the  ground  that  the  parties  have  agreed  to  settle  an 
unliquidated  claim,  or,  in  other  words,  have  agreed  on  an  accord  and 
satisfaction  of  such  claim.^^" 

Same — Compromise. 

We  have  already  seen,  in  treating  of  forbearance  as  a  consideration, 
that  where  a  demand  is  made  and  disputed,  or  a  suit  is  brought,  the 
parties  may  enter  into  a  compromise,  and  that  the  party  upon  whom  the 
demand  is  made  or  against  whom  the  suit  is  brought  will  be  bound 
thereby.  The  consideration  for  his  promise  is  the  forbearance  of  the 
other  party  to  insist  on  his  original  demand,  or  to  further  prosecute 
his  action.^^"  In  such  a  case  the  creditor  or  plaintiff  is  also  bound  by 
the  compromise.  The  settlement  of  the  dispute  and  definite  promise 
by  the  debtor  is  a  consideration  for  his  promise  to  forego  any  further 
claim.  He  cannot  disregard  the  compromise  on  the  ground  that  the 
debtor  promised  only  what  he  was  already  bound  to  do,^^^  ^Ju^'^^'r  (TJ 
Same — Accord  and  oatisiaction. 

Whether  The  sum  due  is  certain  or  uncertain,  the  consideration  for 
the  promise  to  forego  the  residue  of  the  debt  must  be  executed.  It 
is  not  enough  that  the  parties  are  agreed.  Their  agreement  must  be 
carried  out  if  it  is  to  be  an  answer  to  the  original  cause  of  action. 
Where  it  has  been  carried  out,  it  is  an  accord  and  satisfaction.  Where 
it  has  not  been  carried  out  it  is  an  accord  executory.     As  said  in  an 

118  WILKINSON  V.  BYERS,  1  Adol.  &  E.  lOG ;  Baird  v.  U.  S..  9G  U.  S.  430, 
24  L.  Ed.  703;  Goss  v.  Ellison,  13G  Mass.  503;  Potter  v.  Douglass,  44  Conn. 
541;  Riley  v.  Kershaw,  52  Mo.  224;  Ogborn  v.  Hoffman,  52  lud.  439;  Fuller 
V.  Kemp,  138  N.  Y.  231,  33  N.  E.  1034,  20  L.  R.  A.  785;  Sanford  v.  Abrams,  24 
Fla.  181,  2  South.  373;  Berdell  v.  Bissell,  6  Colo.  162;  Stearns  v.  Johnson,  17 
Minn.  142  (Gil.  IIG);  TANNER  V.  MERRILL,  108  Mich.  58.  65  N.  W.  664,  31 
L.  R.  A.  171,  62  Am.  St.  Rep.  687;  NASSOIY  v.  TOMLINSON,  148  N.  Y.  326,  42 
N.  E.  715,  51  Am.  St.  Rep.  695;  Ostrander  v.  Scott,  161  111.  339,  43  N.  E.  1089; 
Chicago,  xM.  &  St.  P.  Ry.  v.  Clark,  178  U.  S.  353,  20  Sup.  Ct.  924,  44  L.  Ed. 
1099.    But  see  Huff  v.  Logan  (Ky.)  60  S.  W.  483. 

110  Tompkins  v.  Hill,  145  Mass.  379,  14  N.  E.  177.    Post,  p.  491. 

120  Ante,  p.  121. 

121  Truax  v.  Miller,  48  Minn.  62,  50  N.  W.  935;  Sisson  v.  City  of  Balti- 
more, 51  :Md.  83;  Ogborn  v.  Hoffman,  52  Ind.  439;  McCall  v.  Nave,  52  Miss. 
494;  Union  Pac.  R.  Co.  v.  Anderson,  11  Colo.  293,  18  Pac.  24;  Perkins  v. 
Hoadley,  49  Mo.  App.  556;  Gates  v.  Steele,  58  Conn.  316,  20  Atl.  474,  18  Am. 
St.  Rep.  268;  Battle  v.  McArthur,  49  Fed.  715;  Northern  Liberty  Market  Co. 
V.  Kelly,  113  U.  S.  199,  5  Sup.  Ct.  422,  28  L.  Ed.  948;  Slade  v.  Elevator  Co., 
39  Neb.  COO,  58  N.  W.  191;  Town  of  Brandon  v.  Jackson,  74  Vt.  78,  52  Atl. 
114;  Dunbar  v.  Dunbar,  180  Mass.  170,  62  N.  E.  248,  94  Am.  St.  Rep.  623. 


§§  74-76)  DOING    WHAT   ONE    IS   BOUND   TO    DO.  133 

old  case:  "Accord  executed  is  satisfaction;  accord  executory  is  only 
substituting  one  cause  of  action  in  the  room  of  another,  which  might 
go  on  to  any  extent."  ^^^  This  is  a  subject,  however,  which  relates  to 
the  discharge  of  contract.^  ^^ 

Same — Composition  with  Creditors. 

A  composition  with  creditors,  whereby  each  creditor  agrees  to  receive 
a  certain  proportion  of  the  sum  due  him,  seems,  at  first  thought,  to  be 
an  infraction  of  the  rule  that  part  payment  of  a  debt  is  no  discharge 
unless  there  is  some  consideration  in  addition  to  the  part  payment  for 
the  promise  to  forego  the  residue.  The  promise  of  the  debtor  to  pay, 
or  payment  by  him,  of  a  portion  of  the  debt,  is  not  the  consideration 
for  the  promises  of  the  creditors  to  forego  the  •balance.^''*  The  con- 
sideration must  be  and  is  something  more  than  this. 

In  a  leading  English  case  Parke,  J.,  said :  "Here  each  creditor  entered 
into  a  new  agreement  with  the  defendant  [the  debtor],  the  consider- 
ation of  which,  to  the  creditor,  was  the  forbearance  by  all  the  other 
creditors  who  were  parties,  to  insist  upon  their  claims."  ^^^  The  view 
that  the  promise  of  each  creditor  is  sustained  by  the  consideration 
moving  from  the  others  has  been  frequently  approved.^^®  It  has,  how- 
ever, met  with  criticism  on  the  ground  that  the  debtor,  being  a  stranger 
to  the  consideration,  cannot  enforce  such  a  contract. ^^^  Sir  William 
Anson  finds  consideration  moving  from  the  debtor  in  his  procurement 
of  the  promise  by  the  other  creditors  to  forbear.^''*  On  one  ground  or 
another  such  agreements  are  universally  sustained.^^*  . 

O  T — 

'        122  LYNN  V.  BRUCE,  2  H.  Bl.  319. 

123  Post,  p.  491.  124  Fitch  v.  Sutton,  5  East,  230. 

125  GOOD  V.  CHEESMAN,  2  Barn.  &  Adol.  335. 

126  WILLIAMS  V.  CARRINGTON,  1  Hilt.  (N.  Y.)  515;  PERKINS  v.  LOCK- 
WOOD,  100  Mass.  249,  1  Am.  Rep.  103;  Brown  v.  Farnham,  48  Minn.  317,  51 
N.  W.  377.  See,  also.  White  v.  Kuntz,  107  N.  Y.  518,  14  N.  E.  423,  1  Am.  St. 
Rep.  886. 

127  See  Huffcutt,  ADSon,  Cont.  108,  note  1;   Harriman,  Cont.  §  126. 

128  Anson,  Cont.  (8th  Ed.)  90. 

129  Fellows  V.  Stevens,  24  Wend.  294;  Murray  v.  Snow,  37  Iowa,  410; 
Cheveront  v.  Textor,  53  Md.  295,  307;  Falconbury  v.  Kendall,  76  Ind.  200; 
Robert  v.  Barnmn,  80  Ky.  28;  Pierce  v.  Jones,  8  Rich.  (S.  C.)  273,  28  Am. 
Rep.  288;  Paddleford  v.  Thacher,  48  Vt.  574;  Boyd  v.  Hind,  1  Hurl.  &  N. 
938;  SLATER  v.  JONES,  L.  R.  8  Exch.  193;  Stewart  v.  Langston,  103  Ga. 
290.  30  S.  E.  35. 


V 


/    . 


t 


\ 


^^/iTv^ 


134  CONSIDERATION.  (Ch.  5 


SAME— IMPOSSIBHilTY   AND   VAGUENESS. 

77.  IMPOSSIBLE    PROMISE.    A   promise    to   do    somethiiLg   wHioIi   is 

eitlier  impossible  in  law,  or  physically  impossible,  is  no  con- 
sideration.  The  thing  must  be  impossible  ou  its  face;  not  mere- 
ly improbable,  or  impossible  to  the  promisor. 

78.  VAGUE  PROMISE.    A  promise  which  is  so  vague  and  indefinite  as 

to  be  incapable  of  enforcement  is  no  consideration. 

Impossible  Promise. 

The  courts  will  also  hold  a  consideration  unreal,  and  therefore  no 
consideration  at  all,  where  it  is  impossible  upon  its  face.  As  will 
presently  be  seen,  practical  impossibility,  unknown  to  the  parties  when 
they  entered  into  their  contract,  may  avoid  it  on  the  ground  of  mis- 
take; ^^°  or  impossibility  of  performance,  arising  subsequent  to  the 
making  of  the  contract,  may,  under  some  circumstances,  operate  as  a 
discharge;  ^^^  but  we  are  here  concerned  with  promises  to  do  a  thing 
so  obviously  impossible  that  the  promise  can  form  no  real  consideration. 

The  consideration  may  be  either  (i)  impossible  in  law,  or  (2)  phys- 
ically impossible.  Where,  for  instance,  a  debtor  made  a  promise  to 
the  servant  of  his  creditor  in  consideration  of  a  promise  by  the  servant 
to  release  him  from  the  debt,  it  was  held  that  there  was  no  consider- 
ation for  the  debtor's  promise,  as  the  servant  had  no  power  to  release 
the  debt.^^^  So,  also,  an  undertaking  that  another's  land  shall  sell  for 
a  given  sum  on  a'  certain  day  has  been  held  insufficient  to  support  a 
promise,  on  the  ground  that  a  person  cannot  compel  the  sale  of  an- 
other's property. ^^^  In  these  cases  the  consideration  is  impossible  in 
law.  A  promise  to  go  from  New  York  to  London  in  a  day  would  be 
physically  impossible,  and  could  form  no  consideration  for  a  promise 
given  in  r^turn.^^* 

Impossibility,  as  used  in  this  connection,  does  not  mean  anything 
more  than  a  prima  facie  legal  impossibility  or  physical  impossibility 
"according  to  the  state  of  knowledge  of  the  day."  ^^^  In  the  first  case 
of  legal  impossibility  mentioned  above,  the  promisor  might  procure 

180  Post,  p.  201.  181  Post,  p.  472. 

132  Harvey  v.  Gibbons,  2  Lev.  161,  And  see  Ward  v,  Hollins,  14  Md,  158; 
Pierce  v.  Pierce,  17  Ind.  App.  107,  46  N.  E.  480. 

188  STEVENS  V.  COON,  1  Pin.  (Wis.)  356. 

134  See  James  v,  Morgan,  1  Lev.  Ill;  ThornDorow  v.  Wbiteacre,  2  Ld.  Raym. 
1164;  Bennett  v.  Morse,  6  Colo.  App.  122,  39  Pac.  582.  A  covenant  by  an  ap- 
plicant for  life  insurance  that  he  will  not  die  by  his  own  hand  while  in- 
sane docs  not  create  a  contract  which  will  defeat  recovery  on  the  policy 
where  the  insm-cd  takes  his  life  while  insane,  since  the  covenant  was  one  im- 
possible to  observe,  and  known  to  be  so  by  both  parties.  Kelley  v.  Insurance 
Co.  (C.  C.)  109  Fed.  50. 

18  8  Per  Brett,  J„  CLIFFORD  v.  WATTS,  L,  R,  5  C.  P.  577,  588. 


§§  77-78)  IMPOSSIBILITY   AND    VAGUENESS.  135 

the  release  of  the  debt;  and,  in  the  second  case,  he  might  procure  the 
owner  of  the  land  to  sell  it  by  the  time  specified.  There  is,  however, 
a  prima  facie  impossibility,  and  this  is  enough.  So  it  may  be  that,  in 
the  future,  means  may  be  discovered  by  which  one  may  be  able  to  travel 
from  New  York  to  London  in  a  day ;  but,  according  to  the  present 
state  of  knowledge,  it  is  physically  impossible.  It  was  said  in  a  New 
York  case  that  if  the  promise  be  "within  the  range  of  possibility,  how- 
ever absurd  or  improbable  the  idea  of  the  execution  of  it  may  be,  it  will 
be  upheld ;  as  where  one  covenants  it  shall  rain  to-morrow,  or  that 
the  pope  shall  be  at  Westminster  on  a  certain  day.  To  bring  the  case 
within  the  rule  of  dispensation,  it  must  appear  that  the  thing  to  be  done 
cannot  by  any  means  be  accomplished ;  for  if  it  is  only  improbable,  or 
out  of  the  power  of  the  obligor,  it  is  not  in  law  deemed  impossible."  ^^® 

Vague  Promise. 

Again,  a  consideration  may  be  unreal  because  it  is  so  vague  in  its 
terms  as  to  be  practically  incapable  of  enforcement.  In  such  case  it 
may  be  classed  with  impossible  considerations.  Where,  for  instance, 
in  an  action  on  a  note  given  by  a  son  to  his  father  the  son  pleaded  a 
promise  made  by  his  father  to  discharge  him  from  liability  on  the  note 
in  consideration  of  his  ceasing  to  make  certain  complaints,  which  he 
had  been  in  the  habit  of  making,  to  the  effect  that  he  had  not  enjoyed 
as  many  advantages  as  the  other  children,  it  was  said  that  the  son's 
promise  was  no  more  than  a  promise  "not  to  bore  his  father,"  and  it 
was  held  too  vague  to  constitute  a  consideration  for  the  father's  prom- 
ise. "A  man,"  said  the  court,  "might  complain  that  another  person 
used  the  highway  more  than  he  ought  to  do,  and  that  other  might  say, 
'Do  not  complain,  and  I  will  give  you  £^.'  It  is  ridiculous  to  suppose 
that  such  promises  could  be  binding."^^''^ 

We  have  already  sufficiently  discussed  the  question  of  vagueness  and 
uncertainty  in  agreements.^'^ 

i3«BEEBE  V.  JOHNSON,  19  Wend.  500,  32  Am.  Dec.  518,  citing  3  Com. 
Dig.  93;  1  Rolle,  Abr.  419.  And  see  Watson  v.  Blossom  (Sup.)  4  N.  Y.  Supp. 
489;  CLIFFORD  v.  WATTS,  L.  R.  5  C.  P.  588;  The  Harriman  v.  Emericii,  9 
Wall.  161,  19  L.  Ed.  629. 

187  WHITE  V.  BLUETT,  23  Law  J.  Exch.  36,  2  Com.  Law  Rep.  301.  And 
see  Ballou  v.  March,  133  Pa.  64,  19  Atl.  304. 

18  8  Ante,  p.  43. 


136  CONSIDERATION.  (Ch.  5 


LEGAXITY    OF    CONSIDERATION. 

79.  Tlie  consideration,  to  support  a  promise,  must  be  legal;  and  there- 
fore a  proxuise  to  do  or  doing  \7h.at  is  illegal  is  no  cousidera- 
tion.ie* 

It  is  well  to  state  this  rule  here,  as  indicating-  a  necessary  element 
in  consideration.  It  will  be  treated  when  we  come  to  consider,  as  an 
element  in  the  formation  of  contract,  the  legality  of  the  objects  for 
which  the  parties  to  a  contract  enter  into  it. 


CONSIDERATION  IN  RESPECT  OF  TIME— PAST  CONSIDERATION. 

80.   A  consideration  may  be  executory  or  executed,  but  it  cannot  be 
past,  except^ 
EXCEPTIONS  i4  0_(a)    'Wliere  the  past  consideration  was  given  at  the 
request  of  the  promisor, 
(b)    Where  the  promise  is  to  pay  for  something  voluntarily  done 
by  the  promisee,  \7hich  the  promisor  was  legally  bound  to 
do. 
(o)    "Where  a  person,  by  a  neur  promise,  revives  an  agreement  by 
which  he  has  benefited,  but  ^rhich  is  not  void,  but  voidable 
or  unenforceable  against  him,  by  reason  of  a  rule  of  law, 
meant  for  his  advantage,  ivhich  he  xuay  waive. 

Executory  Consideration. 

The  consideration  for  a  promise  is  executory  when  it  is  a  promise 
given  in  return  to  do  something  in  the  future.  In  regard  to  this,  there 
is  nothing  to  be  added  to  what  has  already  been  said  with  regard  to 
the  nature  of  consideration  in  general.  We  have  seen  that  a  promise 
on  one  side  is  a  good  consideration  for  a  promise  on  the  other. 

Executed  Consideration. 

A  contract  arises  upon  an  executed  consideration  when  one  of  the 
parties  has  either  in  the  act  which  amounts  to  a  proposal  or  to  an  ac- 
ceptance, as  the  case  may  be,  done  all  that  he  is  bound  to  do  under  the 
contract,  leaving  an  outstanding  liability  on  the  other  side  only.  The 
two  forms  of  consideration  thus  suggested  have  been  described  as  (i) 
acceptance  of  an  executed  consideration,  and  (2)  consideration  executed 
upon  request.^ *^     They  arise  when  the  proposal  is  an  offer  of  an  act 

i«»  BISHOP  V.  PALMER,  146  Mass.  469,  16  N.  E.  299,  4  Am.  St  Rep.  339; 
Hatch  V.  Mann,  15  Wend.  (N.  Y.)  45;  Hartley  v.  Rice,  10  East,  22.  See  post, 
p.  254  et  seq. 

140  The  first  two  exceptions  are  doubtful,  post  pp.  138,  139. 

1*1  Leake,  Cont.  23. 


§  80)  CONSIDERATION   IN   RESPECT  OF  TIME.  137 

for  a  promise,  and  the  act  is  accepted ;  or  where  it  is  an  offer  of  a  prom- 
ise for  an  act,  and  the  act  is  done. 

In  the  first  case  a  man  offers  his  labor  or  goods  under  such  circum- 
stances that  he  obviously  expects  to  be  paid  for  them,  and  the  contract 
arises  when  the  labor  or  goods  are  accepted,  the  acceptor  becoming 
bound  to  pay  a  reasonable  price  for  them.^*^  The  consideration  ex- 
ecuted upon  request,  or  the  contract  which  arises  on  the  acceptance  by 
act  of  the  offer  of  a  promise,  is  best  illustrated  by  the  case  of  an  ad- 
vertisement of  a  reward  for  services,  which  makes  a  binding  promise 
to  give  the  reward  when  the  service  is  rendered.  Under  these  circum- 
stances, it  is  not  the  offeror,  but  the  acceptor,  who  has  done  his  part  in 
becoming  a  party  to  the  contract.^*^  This  form  of  consideration  will 
support  an  implied  as  well  as  an  express  promise  where  a  man  is 
asked  to  perform  certain  services  which  will  entail  certain  liabilities 
and  expenses.  Thus,  where  a  person  is  employed  to  deal  with  prop- 
ert}'  for  a  certain  purpose,  and,  in  the  course  of  the  employment,  he 
is  compelled  to  pay  duties  to  the  government,  he  may  recover  the 
amount  from  his  employer  on  an  implied  promise  to  repay.^** 

Past  Consideration. 

Strictly,  it  is  a  misnomer  to  speak  of  a  past  "consideration,"  for  it 
is  in  fact  no  consideration  at  all.  A  past  consideration,  so  called,  is 
some  act  or  forbearance  in  time  past  by  which  a  man  has  benefited 
without  thereby  incurring  any  legal  liability.  If,  afterwards,  whether 
from  good  feeling  or  interested  motives  it  matters  not,  he  makes  a 
promise  to  the  person  by  whom  he  has  been  so  benefited,  and  thai 
promise  is  made  upon  no  other  consideration  than  the  past  benefit,  the 
promise  is  gratuitous,  and  cannot  be  enforced.^*"  Thus,  where  a  per- 
son who  had  previously  sold  a  vicious  horse  without  any  warranty, 
either  express  or  implied,  afterwards  promised  that  it  was  sound  and 


ii'2  Ante,  p.  15 ;  Hoadley  v.  McLalne,  10  Bing.  4S2;  Hart  v.  Mills,  15  Mees. 
&  W.  87. 

148  Ante,  pp.  15,  38;   ENGLAND  v.  DAVIDSON,  11  Adol.  &  El.  856. 

144  "Whether  the  request  be  direct,  as  where  the  party  is  expressly  desired 
by  the  defendant  to  pay,  or  indirect,  where  he  is  placed  by  him  under  a  lia- 
bility to  pay,  and  does  pay,  makes  no  differenca"  BRITTAIN  v.  LLOYD,  14 
Mees.  &  W.  762. 

145  Anson,  Cont  (8th  Ed.)  95;  HUNT  v.  BATE  (1568)  Dyer,  272;  Bulkley  v. 
Landon,  2  Conn.  404;  BARTHOLOMEW  v.  JACKSON,  20  Johns.  (N.  Y.)  28, 
11  Am.  Dec.  237;  Chaffee  v.  Thomas,  7  Cow.  (N.  Y.)  358;  Greene  v.  First 
Parish  in  Maiden,  10  Pick.  (Mass.)  500;  Williams  v.  Hathaway,  19  Pick. 
(Mass.)  387;  Wilson  v.  Edmonds,  24  N.  H.  517;  Marsh  v.  Chown,  104  Iowa, 
556,  73  N.  W.  1046;  Stoneburner  v.  Motley,  95  Va.  784,  30  S.  E.  364.  Some 
of  the  earlier  cases  sustained,  and  many  late  cases  seem  to  sustain,  prom- 
ises on  a  past  consideration  on  the  ground  of  moral  obligation.  BARNES  v. 
HEDLEY,  2  Taunt  184;  LEE  v.  MUGGERIDGE,  5  Taunt  36.  See  ante,  p. 
108  ;  post  p.  142. 


\Li^^ 


138  I  CONSIDERATION.  (Ch.  5 

free  from  vice,  it  was  held  that  the  promise  was  not  binding  for  want 
of  consideration.^*®  So,  also,  it  has  repeatedly  been  held  that  services 
rendered  in  the  past,  but  not  at  the  express  or  implied  request  of  the 
person  benefited  by  them,  will  not  support  a  promise  by  him  to  pay 
for  them.^*^  In  a  Michigan  case  in  which  liquor  had  been  sold  in  vio- 
lation of  a  statute,  which  was  afterwards  repealed,  the  court  held  that, 
as  the  contract  was  void,  a  promise  by  the  buyer  to  pay,  made  after 
the  statute  was  repealed,  in  consideration  of  the  sale  and  of  an  exten- 
sion of  the  time  for  payment  originally  agreed  upon,  was  without  con- 
sideration.^*^ So,  where  the  balance  of  a  debt  has  been  voluntarily 
and  effectually  released  on  payment  of  a  part  of  it,  a  subsequent  prom- 
ise by  the  debtor  to  pay  the  part  released  cannot  be  enforced.^*® 

Exceptions  to  the  Rule  as  to  Past  Consideration. 

(i)  It  is  generally  declared  a  past  consideration  will  support  a  subse- 
quent promise  if  the  consideration  was  given  at  the  request  of  the 
promisor.  In  Lampleigh  v.  Brathwait  the  plaintiff  sued  for  money 
which  the  defendant  had  promised  to  pay  him  for  services  rendered 
previous  to  the  promise,  at  the  defendant's  request,  but  without  any 
promise  at  the  time  of  the  request  and  of  the  rendition  of  the  services. 
The  court  agreed  "that. a  mere  voluntary  courtesy  will  not  have  con- 
sideration to  uphold  an  assumpsit.  But,  if  that  courtesy  were  moved 
by  a  suit  or  request  of  the  party  that  gives  the  assumpsit,  it  will  bind ; 
for  the  promise,  though  it  follows,  yet  it  is  not  naked,  but  couples  it- 
self with  the  suit  before,  and  the  merits  of  the  party  procured  by  that 
suit."  ^°°     On  principle,  it  would  seem  that,  unless  the  services  were 

146  ROSCORLA  V.  THOMAS,  3  Q.  B.  234. 

147  MILLS  V.  WYMAN,  3  Pick.  (Mass.)  207:  BARTHOLOMEW  v.  JACK- 
SON, 20  Johns.  (N.  Y.)  28;  DEARBORN  v.  BOWMAN,  3  Mete.  (Mass.)  155; 
Allen  V.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358;  Osier  v.  Hobbs, 
33  Ark.  215;  Ellicott  v.  Turner,  4  Md.  476. 

148  Ludlow  V.  Hardy,  38  Mich.  690. 

149  Hale  V.  Rice,  124  Mass.  299;  Mason  v.  Campbell.  27  Minn.  54,  6  N.  W. 
405;  Montgomery  v.  Lampton,  3  Mete.  (Ky.)  519;  SHEPARD  v.  RHODES,  7 
R.  I.  470,  84  Am.  Dec.  573;  Stafford  v.  Bacon,  1  Hill  (N.  Y.)  532,  37  Am.  Dec. 
366.    But  see  Willing  v.  Peters,  12  Serg.  &  R.  (Pa.)  177. 

150  LAMPLEIGH  v.  BRAITHWAIT  (A.  D.  1615)  Hob.  105,  1  Smith,  Lead. 
Gas.  67.  And  see  SIJDENHAM  v.  WORLINGTON  (1585)  2  Leon.  224;  MARSH 
V.  RAINSFORD  (1588)  2  Leon.  Ill;  RIGGS  v.  BULLINGHAM  (1590)  Cro. 
Eliz.  715;  BOSDEN  v.  SIR  JOHN  THENNE  (1603)  Yelr.  40;  FIELD  v.  DALE, 
1  Rolle,  Abr.  11;  Boothe  v.  Fitzpatrick,  36  Vt  681;  Chaffee  v.  Thomas,  7 
Cow.  (N.  Y.)  358;  DEARBORN  v.  BOWMAN,  3  Mete.  (Mass.)  155;  Comstock 
V.  Smith,  7  Johns.  (N.  Y.)  87;  Allen  v.  Woodward,  22  N.  H.  544;  Goldsby  v. 
Robertson,  1  Blackf.  (Ind.)  247;  Carson  v.  Clark,  2  111.  113,  25  Am.  Dec.  79; 
Lonsdale  v.  Brown,  4  Wash.  C.  C.  148,  Fed.  Gas.  No.  8,494;  Wilson  v.  Ed- 
monds, 24  N.  H.  517.  The  previous  request  may  be  inferred  from  the  bene- 
ficial character  of  the  services,  or  other  consideration,  and  the  other  circum- 
stances. HICKS  V.  BURHANS,  10  Johns.  (N.  Y.)  243;  Oatfield  v.  Waring,  14 
Johns.  (N.  Y.)  188;   Wilson  v.  Edmonds,  24  N.  H.  517.    The  rule  laid  down  in 


§  80)  CONSIDERATION    IN    RESPECT    OF   TIME.  139 

rendered  under  such  circumstances  that  the  law  would  imply  a  promise 
to  pay  what  they  were  worth,  a  subsequent  promise  would  be  without 
effect,  and  that  in  that  case  the  only  effect  of  the  subsequent  promise 
would  be  as  evidence  of  the  value  of  the  services.^ °^  In  many  of  the 
cases,  indeed,  in  which  the  exception  was  recognized  the  subsequent 
promise  was  coextensive  with  that  which  would  have  been  implied  by 
law.  And  in  view  of  the  repudiation  of  the  doctrine  of  past  considera- 
tion, the  exception  is  discredited  by  modern  text-writers.^'*^  Lamp- 
leigh  v.  Brathwait  has,  however,  been  followed  in  several  recent  cases 
in  this  country.^ ^^ 

Some  cases  even  go  so  far  as  to  say  that  even  though  the  past  con- 
sideration was  rendered  without  request,  yet,  if  it  moved  directly  from 
the  promisee  to  the  promisor,  and  inured  directly  to  the  promisor's 
benefit,  the  subsequent  promise  is  binding;  ^^*  but  these  cases  are  doubt- 
ful, unless  they  can  be  sustained  on  the  ground  that  the  ratification 
of  an  unauthorized  act  is  equivalent  to  a  request.^ '^^  It  has  been  held 
that  if  the  past  consideration,  though  rendered  at  the  request  of  the 
other  party,  was  intended  by  both  parties  to  be  gratuitous,  the  subse- 
quent promise  to  pay  therefor  is  not  supported  by  a  consideration.^^' 

(2)  There  is  another  exception,  or  possible  exception,  to  the  rule  in 
cases  where  one  person  has  voluntarily  done  what  another  person  was 
legally  bound  to  do,  and  the  latter  afterwards  promises  to  pay  him 
therefor.  The  English  cases  usually  cited  in  support  of  this  rule  all 
turned  upon  the  liability  of  parish  authorities  for  medical  attendance 
upon  paupers  who  were  settl'ed  in  one  parish,  but  resident  in  another. 
It  was  held  in  all  the  cases  that  a  suit  could  be  maintained  for  services 
rendered  against  the  parish  legally  bound  to  render  them,  which  had, 
after  their  rendition,  promised  to  pay  for  them.  Some  of  the  cases 
seem  to  base  the  decision  on  the  ground  that  the  moral  obligation  rest- 

LAMPLEIGH  v.  BRAITHWAIT  was  literally  adhered  to  in  Ireland  in  a  com- 
paratively late  case.  BRADFORD  v.  ROUI^STON,  8  Ir.  C.  L.  468.  "The  mod- 
ern authorities  which  speak  of  services  rendered  upon  request  as  supporting 
a  promise  must  be  confined,  to  cases  where  the  request  implies  an  under- 
taking to  pay."  Per  Holmes,  C.  J.,  in  Moore  v.  Elmer,  ISO  Mass.  15,  61  N.  E. 
259. 

i8i  See  Kennedy  v.  Brown,  18  C.  B.  N.  S.  677,  per  Earle,  C.  J. 

162  Anson,  Cont.  (8th  Ed.)  98-100;  Pollock,  Cont  (3d  Ed.)  187;  Hamman, 
Cont.  §  139. 

153  Pool  V.  Horner,  64  Md.  131,  20  Atl.  1036;  Stuht  v.  Sweesy,  48  Neb.  767, 
€7  N.  W.  748;  Sllverthorn  v.  Wylie,  96  Wis.  69,  71  N.  W.  107;  Montgomei-y  v. 
Downey,  116  Iowa,  632,  88  N.  W.  810.  See,  also,  Daily  v.  Minninck,  117  Iowa, 
563,  91  N.  W.  913,  00  D.  R.  A.  S40. 

164  Boo  the  v.  Fitzpatrick,  36  Vt  681;  Seymour  v.  Town  of  Marlboro,  40  Vt 
171;    Doty  v.  Wilson,  14  Johns.  (N.  Y.)  378. 

156  Post,  p.  140,  note  101. 

156  Allen  V.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358;  Osier  v. 
Hobbs,  33  Ark.  215. 


140  CONSIDERATION.  (Oil.  5 

ing  on  the  parish  was  sufficient  to  support  its  promise ;  ^''^  but,  as  we 
have  seen,  moral  obligations  cannot  form  a  consideration. ^^^  Other 
cases  seem  to  go  on  the  ground  that  there  was  a  legal  obligation  rest- 
ing on  the  parish  of  residence  to  do  that  which  the  parish  of  settlement 
might  legally  have  been  compelled  to  do,  and  that  a  quasi  contractual 
relation  thus  arose  between  the  parties ;  or  that  there  was  knowledge 
on  the  part  of  the  defendant  parish  of  acts  from  which  a  contract  might 
be  implied,  independent  of  the  subsequent  promise.^"®  There  is,  to 
say  the  least,  much  doubt  in  regard  to  this  exception.^*"  In  a  Massa- 
chusetts case,  however,  in  which  the  plaintifT  had,  without  a  prior  re- 
quest, paid  money  which  the  defendant  was  legally  bound  to  pay,  the 
court  held  that  a  subsequent  promise  by  the  defendant  to  reimburse 
him  was  "equivalent  to  a  previous  request,"  on  "the  well-established 
principle  that  the  subsequent  ratification  of  an  act  done  by  a  voluntary 
agent  of  another,  without  authority  from  him,  is  equivalent  to  a  pre- 
vious authority."  *'* 

(3)  The  third  exception,  or  apparent  exception,  to  the  rule  that  a 
past  consideration  will  not  support  a  promise  is  a  substantial  and  im- 
portant one,  and  one  about  which  there  is  no  doubt.  It  is  found  in 
those  cases  in  which  a  person  has  been  held  capable  of  reviving  an 
agreement  by  which  he  has  benefited,  but  which,  by  reason  of  some 
rule  of  law  meant  for  his  advantage,  which  he  may  waive,  is  not  en- 
forceable against  him.  The  principle  upon  which  these  cases  rest  is 
"that,  where  the  consideration  was  originally  beneficial  to  the  party 
promising,  yet,  if  he  be  protected  from  liabiUty  by  some  provision  of 
the  statute  or  common  law,  meant  for  his  advantage,  he  may  renounce 
the  benefit  of  that  law,  and  if  he  promises  to  pay  the  debt,  which  is 
only  what  an  honest  man  ought  to  do,  he  is  then  bound  by  the  law  to 
perform  it."  ^^^  Thus  a  new  promise  made  by  a  bankrupt  or  insolvent 
who  has  been  discharged  from  debts  by  a  certificate  of  bankruptcy,  or 
by  insolvency  proceedings,  to  pay  a  debt,  has  been  upheld  without  fur- 
ther consideration.^*^     So  a  promise  by  a  person,  after  becoming  of 


iBT  WATSON  V.  TURNER,  Bull.  N.  P.  147;  ATKINS  v.  BANWELL,  2 
East,  505;  Wing  v.  Mill,  1  Barn.  &  Aid.  105. 

108  Ante,  p.  108;  MILLS  v.  WYMAN,  3  Pick.  (Mass.)  207. 

150  Paynter  v.  Williams,  1  Cromp.  &  M.  810. 

160  Anson,  Cont.  (Stb  Ed.)  100-102. 

lei  GLEASON  v.  DYKE,  22  Pick.  390.  And  see  Doty  v.  Wilson,  14  Jolins. 
(N.  Y.)  382. 

162  Parke,  B.,  in  Earle  v.  Oliver,  2  Exch.  71;  SHEPARD  v.  RHODES,  7  R. 
I.  470,  84  Am.  Dec.  569;  Turlington  v.  Slaughter,  54  Ala.  195;  Lonsdale  v. 
Brown,  4  Wash.  C.  C.  86,  Fed.  Cas.  No.  8,493.  Promise  hy  the  owner  of  a 
building  to  pay  for  materials  furnished  by  a  contractor  -who  has  failed  to 
comply  with  the  mechanic's  lien  law.    Morse  v.  Crate,  43  111.  App.  513. 

163  TRUEMAN  V.  FENTON,  Cowp.  544;  DUSEXBERRY  v.  HOYT,  53  N. 
Y.  521,  13  Am.  Rep.  543;  WAY  v.  SPERRY,  G  Cush.  (Mass.)  238,  52  Am.  Dec. 


§  80)  CONSIDERATION    IN    RESPECT    OF    TIME.  141 

age,  to  pay  debts  contracted  during  infancy,  and  which  could  not  be 
enforced,  is  binding  on  hini.^®''  Some  courts  have  held  that  a  promise 
by  a  woman  during  widowhood  or  after  divorce,  to  fulfill  promises 
made  during  coverture,  is  binding;  ^°°  but  most  courts  hold  that  as  a 
married  woman's  contract,  unlike  an  infant's,  is  void,  and  not  merely 
voidable,  her  new  promise  after  the  death  of  her  husband,  or  after  a 
divorce  has  been  obtained,  is  without  consideration.^''  So,  also,  a  debt 
barred  by  the  statute  of  limitations  may  be  revived  by  a  new  promise  to 
pay  it,  and  the  new  promise  may  be  implied  from  a  mere  acknowledg- 
ment of  the  debt.^'^  And  an  indorser  on  a  note,  who  has  been  dis- 
charged from  liability  from  want  of  notice  of  nonpayment,  may  waive 
his  discharge. ^'^     It  has  even  been  held,  where  bills,  void  for  usury, 

779;  SHIPPEY  v.  HENDERSON,  14  Johns.  (N.  Y.)  178,  7  Am.  Dec.  458;  Yates' 
Adm'rs  V.  Hollingsworth,  5  Har.  &  J.  (Md.)  216;  Katz  v.  Moessinger,  110  111. 
372;  Shaw  v.  Burney,  86  N.  C.  331,  41  Am.  Rep.  461;  Wisllzenus  v.  O'Fallon, 
91  Mo.  184,  3  S.  W.  837;  WolCfe  v.  Eberlein,  74  Ala.  99,  49  Am.  Rep.  809; 
Carey  v.  Hess,  112  Ind.  398,  14  N.  B.  235;  Knapp  v.  Hoyt,  57  Iowa,  591,  10 
N.  W.  925,  42  Am.  Rep.  59;  Grlel  v.  Solomon,  82  Ala.  85,  2  South.  322,  60  Am. 
Rep.  733;  Hobough  v.  Mm-phy,  114  Pa.  358,  7  Atl.  139;  Mm-phy  v.  Crawford, 
114  Pa.  496,  7  Atl.  142,  Craig  v.  Seitz,  63  Mich.  727,  30  N.  W.  347;  Succession 
of  Audrieu.,  44  La.  Ann.  103,  10  South.  388;  Christie  v.  Bridgman,  51  N.  J. 
Eq.  331,  25  Atl.  939;  Higgins  v.  Dale,  28  Minn.  126,  9  N.  W.  583.  But  not  if 
debt  is  voluntarily  released.  Stafford  v.  Bacon,  1  Hill  (N.  Y.)  532,  37  Am. 
Dec.  366.  See  ante,  p.  137.  Promise  by  third  person  to  pay  discharged  debt. 
Webster  v.  Le  Compte,  74  Md.  249,  22  Atl.  232. 

184  Williams  v.  Moor,  11  Mees.  &  W.  263;  Tibbetts  v.  Gerrish,  25  N.  H.  41, 
57  Am.  Dec.  307;  Bliss  v.  Perryman,  1  Scam.  (111.)  484;  Reed  v.  Batchelder,  1 
Metv:.  CMass.)  559,  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245;  Heady  v.  Bo- 
den,  4  Ind.  Apf).  475.  30  N.  E.  1119;   EDMOND'S  CASE  (1586)  3  Leon.  164. 

1G5  LEE  V.  MUGGERIDGE,  5  Taunt.  36  (this  was  on  the  ground  of  moral 
obligation);  Browu  v.  Bennett,  75  Pa.  420;  Sharpless'  Appeal,  140  Pa.  63,  21 
Atl.  239:   GOULDING  v.  DAVIDSON,  26  N.  Y.  604. 

161  HAYWARD  V.  BARKER,  52  Vt.  429,  36  Am.  Rep.  762;  Porterfleld  v. 
Butler,  47  Miss.  165,  12  Am.  Rep.  329;  MEYER  v.  HOWARTH,  8  Adol.  &  El. 
467;  Waters  v.  Bean.  15  Ga.  358;  Putnam  v.  Tennyson,  50  Ind.  456;  Musick 
V.  Dodson,  7e  Mo.  624,  43  Am.  Rep.  780;  KENT  v.  RAND,  64  N.  H.  45,  5  Atl. 
760;  Valentine  v.  Bell,  66  Vt.  280,  29  Atl.' 251;  Wilcox  v.  Arnold,  116  N.  C. 
70S,  21  S.  E.  434;  Thompson  v.  Hudgins,  116  Ala.  93,  22  South.  632;  Hollo- 
way's  Assignee  v.  Rudy  (Ky.)  60  S.  W.  650.  A  promise  by  a  married  woman, 
having  a  separate  estate,  to  pay  for  necessaries  furnished  her  on  the  credit 
of  such  estate,  is  a  sufficient  consideration  for  a  new  promise  after  the  death 
of  her  husband.     Sherwin  v.  Sanders,  59  Vt.  499,  9  Atl.  239,  59  Am.  Rep.  750. 

167  ILSLEY  V.  JEWETT,  3  Mete.  (Mass.)  439;  Keener  v.  Cnill,  19  111.  189; 
Walker  v.  Henry,  36  W.  Va.  100,  14  S.  E.  440;  Little  v.  Blunt,  9  Pick.  (Mass.) 
488;  Pittman  v.  Elder,  76  Ga.  371;  Pierce  v.  Wimberly,  78  Tex.  187,  14  S.  W. 
454;  Hall  v.  Bryan,  50  Md.  194;  Perkins  v.  Cheney,  114  Mich.  567,  72  N.  W. 
595,  68  Am.  St.  Rep.  495.  But  a  deceased  person's  debt  which  is  barred  will 
not  support  his  widow's  promise  to  pay  it.  SULLIVAN  v.  SULLIVAN,  99 
Cal.  187,  33  Pac.  862. 

168  Ross  v.  Hurd,  71  N.  Y.  14,  27  Am.  Rep.  1;  Glidden  v.  Cliamberlin,  167 
Mass.  486,  46  N.  E.  103,  57  Am.  St.  Rep.  479. 


142  CONSIDERATION.  (Ch.  5- 

were  renewed  after  the  usury  laws  had  been  repealed,  the  consideration 
for  the  renewal  being  the  past  loan,  that  the  new  bills  were  valid. ^°® 

There  is  undoubtedly  in  all  of  these  cases  a  moral  obligation  to  ful- 
fill the  unenforceable  promise,  and  many  of  the  decisions,  both  old  and 
modern,  base  the  validity  of  the  new  promise  on  the  ground  of  the 
moral  obligation,  thereby  making  this  class  of  cases  an  exception  to  the 
rule  that  a  moral  obligation  cannot  support  a  promise.^^°  If  the  ef- 
fect of  these  cases  is  to  make  such  an  exception,  it  is  unfortunate,  to 
say  the  least,  for  there  is  much  dicta  to  the  effect  that  a  moral  obliga- 
tion can  never  support  a  promise.^'^^  It  would  seem  much  better  to 
base  the  validity  of  such  promises,  not  on  the  moral  obligation,  but  on 
the  prior  agreement,  supported  by  a  valuable  consideration,  and  the 
right  of  the  promisor  to  waive  the  technical  rules  of  law,  meant  for  his 
benefit,  and  which  render  it  unenforceable. 

169  PLIGHT  V.  REED,  1  Hurl.  &  C.  703;  Hammond  v.  Hopping,  13  Wend. 
(N.  Y.)  505.  See  BARNES  v.  HEDLEY,  2  Taunt.  1S4.  But  see  Ludlow  v. 
Hardy,  38  Mich.  690;  ante,  p.  109;  and  dissenting  opinion  of  Martin,  B.,  in 
FLIGHT  V.  REED,  supra. 

i70EDMOND'S  CASE  (1586). 8  Leon.  164;  Wislizenus  v.  O'Fallon,  91  Mo. 
184,  3  S.  W.  837;  Turlington  t.  Slaughter,  54  Ala.  195;  Musick  v.  Dodson,  76 
Mo.  624,  43  Am.  Rep.  780;  Carey  v.  Hess,  112  Ind.  398.  14  N.  E.  235;  Ho- 
bough  V.  Murphy,  114  Pa,  358,  7  Atl.  139;  Murphy  v.  Crawford,  114  Pa.  496, 
7  Atl.  142;  Craig  v.  Seitz,  63  Mich.  727,  30  N.  W.  347;  Succession  of  Audrieu, 
44  La.  Ann.  108,  10  South.  388.    See  post,  p.  300. 

171  MHjLS  v.  WYMAN,  3  Pick.  (Mass.)  207.  And  see  ante,  p.  108  et  seq., 
and  cases  cited. 


uA^ 


§^  81-83) 


CAPACITY   OF  PARTIES. 


143 


CHAPTER  VI. 


CAPACITY  OF  PARTIES. 


81.  In  General. 

82-S3.  Political  Status— States  and  United  States. 

84.  ForeigTi  States  and  Sovereigns. 

85-88.  Aliens. 

89.  Convicts. 

90.  Professional  Status. 
91-94.  Infants — In  General. 

95-97.  Liability  for  Necessaries. 

98.  Ratification  and  Avoidance. 

99-101.  '          Who  may  Avoid  Contract 

102-104.  Time  of  Avoidance. 

105-107.  What  Amounts  to  Ratification. 

108.  What  Amounts  to  Disaffirmance. 

109.  Extent  of  Ratification  or  Disaffirmance. 
110-111.  Return  of  Consideration. 

112-114.  Effect  of  Ratification  and  Disaffirmance. 

115-116.  Torts  in  Connection  with  Contracts. 

117.  Insane  Persons — In  General. 

118-121.  Ratification  and  Avoidance. 

122-123.  Drunken  Persons. 

124.  Married  Women. 

125-128.  Corporations. 

Thus  far  we  have  been  dealing  with  the  contract  itself,  and  those 
elements  in  its  fonnation  which  are  essential  to  give  it  even  a  prima 
facie  validity.  Communication  by  offer  and  acceptance,  and  form  or 
consideration,  or,  in  some  cases,  both  form  and  consideration,  are  neces- 
sary to  every  agreement  that  is  to  be  considered  by  courts  of  law ;  but 
this  is  not  all.  When  we  have  constructed  an  apparently  binding  con- 
tract, it  is  necessary,  before  we  can  pronounce  finally  upon  its  validity, 
to  look  to  the  parties  to  it,  and  ask  who  made  it,  under  what  circum- 
stances, and  with  what  object.  In  other  words,  we  have  to  inquire 
whether  the  parties  were  capable  of  contracting,  whether  their  apparent 
consent  was  genuine,  and  whether  their  object  was  legal. ^  In  this 
chapter  we  shall  consider  the  question  of  the  capacity  of  the  parties. 

IN  GENERAL. 

81.   Incapacity  to  contract  may  arise  from  the  folloTiring:  causes  t 

(a)    Political  status.    In  this  connection  xve  xirill  consider  contracts  by 

(1)  The  United  States  or  state  governments; 

(2)  Foreign  sovereig^is  or  states,  and  their  representatives; 

(3)  Aliens; 

(4)  Convicts. 


1  See  Anson,  Cont.  (4th  Ed.)  102. 


144  CAPACITY   OF   PARTIES.  (Ch.  6 

(b)  Professional  status,  as  in  tlie  case  of  professional  contracts  by 

(1)  Attorneys; 

(2)  Physicians;   and 

(3)  In  some  jurisdictions,  other  professional  persons. 

(c)  Youth,  as  in  the  case  of  infants. 

(d)  Permanent  or  temporary  mental  aberration,  as  in  the  case  of 

(1)  Idiocy; 

(2)  Insanity; 

(3)  Drunkenness. 

(e)  Merger  of  capacity,  as  in  case  of  married  Tromen. 

(f)  Artificiality  of  construction,  as  in  the  case  of  corporations. 


POLITICAIi  STATUS— STATES  AND  UNITED  STATES. 

82.  The  United  States  and  the  states  may  enter  into  contracts  through 
their  authorized  agents,  but  only  in  furtherance  of  the  objects 
of  government,  and  subject  to  the  limitations  of  the  constitu- 
tion. 

33.  They  may  sue  on  their  contracts,  but  cannot  be  sued  unless  they 
submit  thereto.  This,  however,  they  have  very  generally  done 
by  statutory  or  constitutional  provisions. 


The  power  of  the  United  States  government  and  the  government 
of  a  state  to  enter  into  contracts  in  furtherance  of  objects  for  which 
the  government  was  established,  and  not  prohibited  by  constitutional 
limitations,  is  an  incident  to  the  general  right  of  sovereignty.  The 
question  arose  in  the  supreme  court  of  the  United  States  in  a  case  in 
which  it  was  held  that  a  voluntary  bond,  taken  by  authority  of  the 
proper  officers  of  the  treasury  department  intrusted  with  the  disburse- 
ment of  public  moneys  to  secure  the  fidelity  in  official  duties  of  a  re- 
ceiver or  disbursing  agent,  was  a  binding  contract  between  him  and 
his  sureties  and  the  United  States,  though  the  bond  was  not  pre- 
scribed by  any  positive  law.  "Upon  full  consideration  of  this  sub- 
ject," said  the  court,  "we  are  of  opinion  that  the  United  States  have 
such  capacity  to  enter  into  contracts.  It  is,  in  our  opinion,  an  incident 
to  the  general  right  of  sovereignty;  and,  the  United  States  being  a 
body  politic,  may,  within  the  sphere  of  the  political  powers  confided  to 
it,  and  through  the  instrumentality  of  the  proper  department  to  which 
those  powers  are  confided,  enter  into  contracts  not  prohibited  by  law, 
and  appropriate  to  the  proper  exercise  of  those  powers.  *  *  *  fo 
adopt  a  different  principle  would  be  to  deny  the  ordinary  rights  of 
sovereignty,  not  merely  to  the  general  government,  but  even  to  the 
state  governments  within  the  proper  sphere  of  their  own  powers,  un- 
less brought  into  operation  by  express  legislation.  A  doctrine  to  such 
an  extent  is  not  known  to  this  court  as  ever  having  been  sanctioned 


§§  81-83)  STATES   AND   UNITED   STATES.  145 

by  any  judicial  tribunal."  "  The  same  doctrine  applies  to  contracts  by 
the  state  government.^ 

A  contract,  however,  to  bind  the  government,  must  be  made  by  its 
authorized  agent,  and  parties  dealing  with  its  agent  must  see  at  their 
peril  that  the  agent  has  actual  authority.* 

Where  the  government  enters  into  a  contract,  whether  a  negotiable 
instrument  or  otherwise,  which  it  has  authority  to  make,  it  is  bound 
in  any  court  to  whose  jurisdiction  it  submits  by  the  same  principles 
that  govern  individuals  in  their  relation  to  such  contracts.* 

At  common  law  the  sovereign  cannot  be  sued  without  his  consent, 
and  this  doctrine  prevents  suits  against  a  state  or  against  the  United 
States,  in  the  absence  of  permission  by  virtue  of  some  statutory  or 
constitutional  provision.''  There  are,,  however,  in  most  of  the  states, 
provisions  allowing  suit  in  some  form  by  individuals  against  the  state ;  ^ 
and  the  United  States  may  be  proceeded  against  in  the  court  of  claims,® 
and  in  some  cases  in  the  other  federal  courts.*  A  state  or  the  United 
States  has  the  same  right  as  an  individual  to  maintain  an  action  on  a 
contract  made  with  it,^"  and  it  is  the  proper  party  to  maintain  such 
an  actios?. 

2  U.  S.  V.  Tingey,  5  Pet.  115,  8  L.  Ed.  66  And  see  U.  S.  v.  Lane,  3  McLean, 
365,  Fed.  Cas.  No.  15,559. 

3  Danolds  v.  State,  89  N.  Y.  37,  42  Am.  Rep.  277. 

*  The  Floyd  Acceptances,  7  Wall.  666,  3  L.  Ed.  64;  "Whiteside  v.  United 
States,  93  U.  S.  247,  23  L.  Ed.  8S2.     See  Tiffany,  Ag.  201. 

5  The  Floyd  Acceptances,  supra;  Danolds  v.  State,  supra;  Patten  v.  Gil- 
mer, 42  Ala.  548,  94  Am   Dec.  665;   U.  S.  v.  Ingate  (C.  C.)  48  Fed.  251. 

6  U.  S.  V.  Clarke,  8  Pel.  436,  8  L.  Ed.  1001;  Troy  &  G.  R.  Co.  v.  Com.,  127 
Mass.  43;  Ottawa  Co.  v.  Aplin,  69  Mich.  1,  36  N.  W.  702;  President,  etc.,  of 
Michigan  State  Bank  v.  Hammond,  1  Doug.  (Mich.)  527;  Same  v.  Hastings, 
1  Doug.  (Mich.)  225,  41  Am.  Dec.  549;  Pattison  v.  Shaw,  6  Ind.  377;  liOwry  v. 
Thompson,  25  S.  C.  410,  1  S.  E.  141;  People  v.  Talmage,  6  Cal.  257;  Taylor 
V.  Hall,  71  Tex.  206,  9  S.  W.  148;  Galbes  v.  Girard  (C.  C.)  46  Fed.  500;  Fer- 
ris V.  Land  Co.,  94  Ala.  557.  10  South.  607,  33  Am.  St.  Rep.  146.  An  action 
against  a  state  or  United  States  officer,  which  is  in  effect  against  the  state 
or  the  United  States,  is  within  the  rule.  Ottawa  Co.  v.  Aplin,  69  Mich.  1,  36 
N.  W.  702;  Taylor  v.  Hall,  71  Tex.  206,  9  S.  W.  148;  Aplin  v.  Board,  73  Mich. 
182,  41  N.  W.  223;  Mills  Pub.  Co.  v.  Larrabee,  78  Iowa,  97,  42  N.  W.  593; 
State  V.  Temple,  134  U.  S.  22,  10  Sup.  Ct.  509,  33  L.  Ed.  849;  Brown  University 
V.  Rhode  Island  College  (C.  C.)  56  Fed.  55. 

7  Wesson  v.  Com.,  144  Mass.  60,  10  N.  E.  762;  Green  v.  State,  73  Cal.  29,  11 
Pac.  602,  14  Pac.  610;  Hoagland  v.  State  (Cal.)  22  Pac.  142;  Board  of  Edu- 
cation of  Granville  Co.  v.  State  Board,  106  N.  C.  81,  10  S.  E.  1002. 

8  Nicholl  V.  U.  S.,  7  Wall.  122,  19  L.  Ed.  125;  Finn  v.  U.  S.,  123  U.  S.  227, 
8  Sup.  Ct.  82,  31  L.  Ed.  128;  United  States  v.  Gumming,  130  U.  S.  152,  9 
Sup.  Ct.  583,  32  L.  Ed.  1029. 

9  Torrey  v.  U.  S.  (C.  C.)  42  Fed.  207;   Bowe  v.  U.  S.,  Id.  761. 

10  State  V.  Grant,  10  Minn.  39  (Gil.  22);  State  v.  Burkeholder,  30  W.  Va. 
593,  5  S.  E.  439;   People  v.  City  of  St.  Louis,  5  Gilman  (111.)  351,  48  Am.  Dec. 

Clark  Cont.  (2d  Ed.)— 10 


146  CAPACITY  OF  TARTiES.  (Ch.  6 


SAME— FOREIGN  STATES  AND  SOVEREIGNS. 

84.  Foreign  sovereigns  and  states  and  their  representatives  may  make 
contracts  and  sne  thereon  in  onr  courts,  but  th.ey  cannot  be 
sued  unless  they  submit. 

Foreign  states  and  sovereigns  and  their  representatives,  and  the  offi- 
cials and  household  of  their  representatives,  are  not  subject  to  the 
jurisdiction  of  our  courts  unless  they  submit  to  it^^  A  contract,  there- 
fore, entered  into  with  such  persons,  cannot  be  enforced  against  them 
unless  they  so  clioose,  but  it  may  be  enforced  by  them.^* 


SAME— ALIENS. 

85.  An  alien,  not  an  alien  enemy,  has  in  most  jurisdictions  the  same 

power  to  contract  that  a  subject  has,  and  may  in  like  manner 
sue  and  be  sued  on  his  contracts.  In  some  jurisdictions  he 
cannot  acquire  or  hold  land. 

86.  ALIEN  ENEMIES— An  alien  enemy  cannot,  as  a  rule,  without  leave 

of  the  government,  make  any  contract  Yirith  a  subject,  or  enforce 
any  existing  contract,  during  the  continuance  of  hostilities. 

87.  He  may  be  sued  on  existing  contracts,  and  in  such  a  case  he  may 

defend. 

88.  Pre-existing  contracts  are  not  dissolved  by  the  war  unless  they 

are  of  a  continuing  nature. 

An  alien  is  said  to  be  a  person  born  out  of  the  jurisdiction  of  the 
United  States,  subject  to  some  foreign  government,  who  has  not  been 
naturalized  under  their  constitution  and  laws,^^  but  under  our  statutes 
this  is  not  strictly  true.  It  is  not  within  the  scope  of  this  work  to  go 
fully  into  this  question.  The  statutes  and  decisions  must  be  consult- 
ed.^*    The  right  of  aHens  to  take,  hold,  and  dispose  of  property,  real 

339;  Spencer  v.  Brockway,  1  Ohio,  259,  13  Am.  Dec.  615;  United  States  v. 
Holmes  (C.  C.)  105  Fed.  41. 

11  Taylor  v.  Best,  14  O.  B.  487. 

18  See  King  of  Prussia  v.  Kuepper's  Adm'r,  22  Mo.  550,  66  Am.  Dec.  639; 
Bish.  Cont  §  998. 

13  2  Kent,  Comra.  50;  Dawson  v.  Godfrey,  4  Cranch,  321,  2  L.  Ed.  G34;  Alns- 
lie  V.  Martin,  9  Mass.  456;   1  Am.  &  Eng.  Enc.  Law.  457,  note  1. 

14  As  to  who  are  aliens,  see  State  v.  Boyd,  31  Neh.  682.  48  N.  W.  739,  51 
N.  W.  602;  Boyd  v.  Nebraska,  143  U.  S.  135,  12  Sup.  Ct.  375,  36  L.  Ed.  103; 
State  V.  Andriano,  92  Mo.  70,  4  S.  W.  263;  Charles  Green's  Son  v.  Salas 
(C.  C.)  31  Fed.  106;  Ware  v.  Wisner  (C.  C.)  50  Fed.  310;  City  of  Minneapolis 
T.  Reum,  6  C.  C.  A.  31.  56  Fed.  576;  Comitis  v.  Parkerson,  56  Fed.  556,  22 
L.  R.  A.  148;   minor  cliildren  of  naturalized  foreigners,  State  y.  Andriano,  92 


§.§  86-88)  ALIENS.  147 

or  personal,  is  generally  regulated  by  the  states.  In  some  states  the 
constitution  expressly  prohibits  the  legislature  from  depriving  resident 
foreigners  of  any  of  the  rights  enjoyed  by  native-born  citizens  with 
respect  to  the  acquisition,  possession,  enjoyment,  and  transmission  of 
property.^ °  In  some  states,  where  there  is  no  such  constitutional  pro- 
vision, aliens  are  prohibited  from  acquiring  and  holding  real  property, 
while  in  others  nonresidents  are  not  given  such  right,  while  residents 
are ;  but  in  many  states  aliens,  whether  resident  or  not,  have  the  same 
rights  in  this  respect  as  native-born  subjects.^®  In  most,  if  not  in  all, 
the  states  they  have  the  power  to  make  and  enforce  contracts  in  re- 
spect to  personal  property,  and  such  contracts  may  be  enforced  against 
them.^''     The  rule  does  not  apply  to  alien  enemies. 

Alien  Enemies. ^^ 

An  alien  enemy  is  one  who  is  the  subject  or  citizen  of  some  hostile 
state  or  power.  War  suspends  all  commercial  intercourse  between  the 
belligerent  countries,  except  so  far  as  may  be  allowed  by  the  sovereign 
authority,  and  all  contracts  which  tend  to  increase  the  resources  of  the 
enemy  or  involve  commercial  dealing  between  the  two  countries  are 
prohibited.^®  Nor  can  an  alien  enemy  enforce  any  existing  contract  ^° 
during  the  continuance  of  hostilities.      These  rules  were  applied  to  con- 

Mo.  70,  4  S.  W.  263;  Behrensmeyer  v.  Kreitz,  135  111.  591,  26  N.  E.  704;  State 
V.  Boyd,  31  Neb.  682,  48  N.  W.  739,  51  N.  W.  602.  Alien  Avoman  marrying  a 
citizen  becomes  a  citizen.  Ware  t.  Wisner  (C.  C.)  50  Fed.  310.  Minor  children 
of  foreign  parents,  whose  mother,  after  the  death  of  the  father,  marries  a 
citizen,  become  citizens.  Kreitz  v.  Behrensmeyer,  125  111.  141,  17  N.  E.  232. 
Children  born  abroad  of  American  citizens  ai'e  citizens.  Ware  v.  Wisner  (C.^ 
C.)  50  Fed.  310. 

16  See  State  v.  Smith,  70  Cal.  153,  12  Pac.  121;  Nicrosi  y.  Phillipi.  91  Ala.. 
299,  8  South.  561. 

16  See  Milliken  v.  Barrow  (C.  C.)  55  Fed.  148;  Manuel  v.  WulfC,  152  U.  S. 
505,  14  Sup.  Ct.  651,  38  L.  Ed.  532;  McCreery  v.  Allender,  4  Har.  &  McH.  (Md.) 
409;  Zundel  v.  Gess,  73  Tex.  144,  9  S.  W.  879;  Wunderle  v.  Wuuderle,  144- 
111.  40,  32  N.  E.  195,  19  L.  R.  A.  84;  Furenes  v.  Mickleson,  86  Iowa,  508,  53. 
N.  W.  416;  Bennett  v.  Hibbert,  88  Iowa,  154,  55  N.  W.  93. 

17  Taylor  v.  Carpenter,  3  Story,  458,  Fed.  Cas.  No.  13,784;  Franco-Texan 
Land  Co.  v.  Chaptive  (Tex.  Sup.)  3  S.  W.  31. 

18  Post,  p.  290. 

18  Kershaw  v.  Kelsey,  100  Mass.  561,  97  Am.  Dec.  124,  1  Am.  Rep.  142; 
UNITED  STATES  v.  GROSSMAYER,  9  Wall.  72,  19  L.  Ed.  627;  New  York 
Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  24  L.  Ed.  453;  Williams  v.  Paine,  169  U.  S. 
55,  18  Sup.  Ct,  279,  42  L.  Ed.  658;  O'Mealey  v.  Wilson,  1  Camp.  482;  Phillips 
V.  Hatch,  1  Dill.  571,  Fed.  Cas.  No.  11,094;  Hill  v.  Baker,  32  Iowa,  302,  7  Am. 
Rep.  193;  Masterson  v,  Howard,  18  Wall.  99,  19  L.  Ed.  953;  Muttial  Ben.  Life 
Ins.  Co.  V.  Hillyard,  37  N.  J.  Law,  444,  18  Am.  Rep.  741;  Wright  v,  Graham, 
4  W.  Va  430;  Habricht  v.  Alexander,  1  Woods,  413,  Fed.  Cas.  No.  5,880;  De 
Jarnette  v.  De  Giverville,  56  Mo.  440. 

2  0  Brooke  v.  Filer,  35  Ind.  402;  Blackwell  v.  Willard,  65  N.  C.  55.^  6  Am. 
Rep.  749;    Semmes  v.  Insurance  Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651. 


148  CAPACITY   OF  PARTIES.  (Ch.  G 

tracts  between  the  respective  citizens  of  the  Northern  and  Southern 
states  during  the  Civil  War.'^*  Though  an  alien  enemy  cannot  sue  on 
contracts  during  the  continuance  of  hostilities,  he  may  be  sued,  and  in 
such  case  he  may  defend. ^^ 

Same — Pre-existing  Contracts, 

Whether  a  pre-existing  contract  is  dissolved  or  not  by  the  war  de- 
pends upon  whether  it  is  essentially  antagonistic  to  the  laws  governing 
a  state  of  war.  If  it  is  of  a  continuing  nature,  as  in  the  case  of  a  part- 
nership, or  of  an  executory  character  merely,  and  in  the  performance 
of  its  essential  features  would  violate  such  laws,  it  would  be  dissolved ; 
but,  if  not,  and  rights  have  become  vested  under  it,  the  contract  will 
either  be  qualified,  or  its  performance  suspended,  according  to  its  na- 
ture, so  as  to  strip  it  of  its  objectionable  features,  and  save  such  rights. 
The  tendency  of  adjudication  is  to  preserve,  and  not  to  destroy,  con- 
tracts existing  before  the  war.*' 

SAME— CONVICTS.  ^  ^ 

89.    In  this  country  a  convict  can  in  most  jurisdictions,  nnless  pro- 
hibited by  statute,  make  contracts,  and  sue  and  be  sued  thereon. 

At  common  law  a  person  who  has  been  convicted  of  treason  or  felony 
could  not,  during  the  continuance  of  his  conviction,  make  a  valid  con- 
tract; nor  could  he  enforce  contracts  made  previous  to  conviction. 
With  us  this  rule  is  not  recognized  to  any  extent,  and  a  convict  under- 
going a  sentence  of  imprisonment,  or  even  awaiting  execution  of  a 
sentence  of  death,  may,  in  the  absence  of  statutory  restrictions,  enter 
into  contracts,  and  sue  or  be  sued  thereon.**  In  some  states,  how- 
ever, there  are  statutes  declaring  that  a  sentence  of  imprisonment  in 
the  penitentiary  shall  suspend  all  civil  rights,  and  in  these  states  a  con- 
tract by  a  convict  while  under  sentence  is  void.*"  This,  however,  does 
not  render  him  civilly  dead,  unless  the  statute  so  provides,  as  it  does 

21  See  cases  in  preceding  notes. 

2  2  Dorsey  v.  Tliompson,  37  Md.  25;  McYoish  v.  U.  S.,  11  Wall.  259,  20  L. 
Ed.  SO;  Mixer  v.  Sibley,  53  111.  61;  McNair  v.  Toler,  21  Minn.  175.  See  Clarke 
V.  Morey,  10  Johns.  (N.  Y.)  69. 

2  3  Mntual  Ben.  Life  Ins.  Co.  v.  Hillyard,  37  N.  J.  Law,  444,  18  Am.  Rep.  741; 
GriSTVold  v.  Waddington,  15  .Johns.  (N.  Y.)  57;  Semmes  v.  City  Fire  Ins.  Co., 
36  Conn.  543,  Fed.  Cas.  No.  12,651;  Bank  of  New  Orleans  v.  Matthews,  49 
N.  Y.  12;  Cohen  v.  Insurance  Co..  50  N.  Y.  610,  10  Am.  Rep.  522;  Washington 
University  v.  Finch,  18  Wall.  106,  21  L.  Ed.  818;  Whelan  v.  Cook,  29  Md.  1; 
Dorsey  v.  Kyle,  30  Md.  512,  96  Am.  Dec.  617;   Same  v.  Thompson,  37  Md.  25. 

24  Platner  v.  Sher^'ood,  6  Johns.  Ch.  (N.  Y.)  118;  Willingham  v.  King,  23 
Fla.  478,  2  South.  851;  In  re  Estate  of  Nerac,  35  Cal.  392,  95  Am.  Dec  111. 
And  see  Dade  Coal  Co.  v.  ITaslott,  83  Ga.  549,  10  S.  E.  435. 

26  Williams  v.  Shackelford,  97  Mo.  322,  11  S.  W.  222. 


c  - 


§§  90-94)                                              INFANTS.  149 

generally  where  the  sentence  is  for  life;  nor  prevent  his  creditor  froin 

suing  him,  for,  though  his  civil  rights  are  suspended,  the  rights  ot 
creditors  are  not  suspended.^' 


PROFESSIONAIi  STATUS. 

90.  In  England  a  barrister  cannot  sue  upon  a  contract  for  compensa- 

tion for  his  services,  but  this  disability  does  not  exist  in  the 
United  States. 

In  England,  a  barrister  cannot  sue  for  fees  due  him  for  services  ren- 
dered in  the  ordinary  course  of  his  professional  duties,  either  upon  an 
implied  or  an  express  contract.  Formerly  a  physician  was  so  far  in 
the  same  position  as  a  barrister  that,  until  the  law  was  changed  by  stat- 
ute, the  rendition  of  services  on  request  raised  no  implied  promise  to 
pay  for  them,  though  the  patient  might  bind  himself  by  express  con- 
tract. But  these  disabilities  are  not  to  any  extent  recognized  in  this 
coun<-ry.2^  There  are,  indeed,  in  most,  if  not  all,  the  states,  statutes 
prescribing  certain  requisites  to  entitle  a  physician,  attorney,  and  cer- 
tain other  professional  men  to  practice,  such  as  the  taking  out  of  a 
license ;  and,  until  he  has  complied  with  the  statute,  he  has  no  right 
to  practice,  and  contracts  made  with  him  for  professional  services  are 
void.     This,  however,  is  properly  for  treatment  later.^* 

INFANTS— IN  GENERAL. 

91.  Sotxie  contracts  of  an  infant  are  valid,  and  a  few,  in  some  jurisdic- 

tions, are  absolutely  void,  but  most  of  his  contracts  are  simply 
voidable  at  his  option. 

92.  VALID  CONTRACTS— Tbe  valid  contracts  of  an  Infant  are: 

(a)  Contracts  created  by  law,  or  quasi  contracts. 

(b)  Contracts  entered  into  under  authority  or  direction  of  law^. 

(c)  Contracts  made  in  order  to  do  ^^rhat  he  ^vas  legally  bound  to  do, 

and  could  have  been  compelled  to  do. 

93.  VOID  CONTRACTS— In  some  jurisdictions  a  contract  of  an  infant 

which  is  manifestly  and  without  doubt  to  his  prejudice  is  void. 

94.  VOIDABLE   CONTRACTS— The   tendency   is  to   hold  all   contracts 

other  than  valid  ones  simply  voidable  at  the  infant's  option. 

26  In  re  Estate  of  Nerac,  35  Cal.  392,  95  Am.  Dec.  111. 

27  Vilas  V.  Downer,  21  Vt.  419;  Garrey  v.  Stadler,  67  Wis.  248,  30  N.  W. 
787,  58  Am.  Rep.  877 ;  Price  v.  Hay,  132  111.  543,  24  N.  E.  620 ;  Boyd  v.  Lee,  36 
S.  C.  19,  15  S.  E.  332.  In  New  Jersey,  comisel  fees,  as  such,  cannot  be  recov- 
ered in  the  absence  of  an  express  agreement.  Van  Atta  v.  McKinney's  Ex'rs, 
IG  N.  J.  Law,  235;  Blake  v.  City  of  Elizabeth,  2  N.  J.  Law  J.  328;  Hopper 
V.  Lndlum,  41  N.  J.  Law,  182.  It  is  otherwise  where  there  is  an  express  agree- 
ment to  pay  for  them.    Zabriskie  v.  Woodruff,  48  N.  J.  Law,  610,  7  Atl.  336. 

2  8  See  post,  p.  263. 


IgO  CAPACITY   OF   PARTIES.  (Ch.  6 

in  General. 

An  infant,  at  common  law,  is  a  person  under  twenty-one  years  of 
age,  whether  male  or  female;  but  in  some  jurisdictions,  by  statute, 
females  attain  their  majority  at  eighteen,  either  for  all  purposes  or  for 
particular  purposes  specified  in  the  statute.  Since  the  common  law,  as 
a  rule,  does  not  regard  fractions  of  a  day,  an  infant  becomes  of  age  on 
the  beginning  of  the  day  before  his  or  her  twenty-first  or  eighteenth 
birthday,  as  the  case  may  be.^' 

As  we  shall  see,  the  contracts  of  an  infant,  as  a  rule,  are  not  void, 
but  simply  voidable  at  his  option.  The  rule  is  intended  for  the  infant's 
benefit;  and  it  may  therefore  be  said  that  infancy  in  effect  confers  a 
privilege,  rather  than  imposes  a  disability. 

Emancipation  of  an  infant  by  his  parent  gives  him  the  right  to  his 
earnings,  and  releases  him  from  his  parent's  control,  but  it  does  not 
remove  his  disability,  and  clothe  him  with  the  power  to  contract.^" 

The  Old  Doctrine  as  to  the  Bifect  of  an  Infant's  Contract. 

There  is  much  confusion  and  conflict  in  the  authorities  as  to  the 
effect  of  the  contracts  of  infants.  In  an  early  English  case  the  doc- 
trine was  stated  to  be  that  (i)  where  the  court  could  pronounce  the 
contract  for  the  benefit  of  the  infant,  as  for  necessaries,  it  was  good ; 
(2)  that  where  the  court  could  pronounce  it  to  be  to  his  prejudice  it 
was  void;  and  (3)  that  in  those  cases  where  the  benefit  or  prejudice 
were  uncertain  the  contract  was  voidable  only.^^  And  the  same  doc- 
trine has  been  laid  down  by  some  of  the  American  courts  and  text  writ- 
ers.^^ 

This  cannot,  however,  be  accepted  as  a  correct  statement  of  the  law 
to-day.  In  the  first  place,  many  contracts  are  binding  on  an  infant 
without  regard  to  whether  they  are  for  his  benefit  or  not.  In  the  sec- 
ond place,  the  great  weight  of  authority  is  against  making  any  distinc- 
tion between  contracts  of  an  infant  as  being  void  or  voidable,  and  in 
favor  of  holding  all  contracts  other  than  valid  ones,  with  a  very  few 
exceptions,  simply  voidable  by  the  infant  at  his  option.^ ^  The  object 
of  the  law  is  merely  to  protect  the  infant,  and  this  object  is  amply 

2  9  Mete.  Cont.  (Heard's  Ed.)  43;  Herbert  v.  Turball,  1  Keble,  5S9,  Ewell's 
Cas.  1 ;  Bardwell  v.  Purrington,  107  Mass.  419 ;  State  v.  Clarke,  3  Har.  (Del.) 
557;  Hamlin  v.  Stevenson,  4  Dana  CKy.)  597;  Wells  v.  Wells,  6  Ind.  447; 
Lenbart  v.  State,  33  Tex.  Cr.  R.  504,  27  S.  W.  260. 

3  0  Mason  v.  Wright,  13  Mete.  (Mass.)  306;  Tyler  v.  Fleming,  68  Mich.  185, 
35  N.  W.  902,  13  Am.  St.  Rep.  336;   Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345. 

31  Keane  v.  Boycott,  2  H.  Bl.  511. 

32  Vent  v.  Osgood,  19  Pick.  (Mass.)  572;  Tucker  v.  Moreland,  10  Pet.  65, 
9  L.  Ed.  345;  Owon  v.  Long,  112  Mass.  403;  Dunton  v.  Brown,  31  Mich.  182; 
Green  v.  Wilding,  59  Iowa,  679,  13  N.  W.  761,  44  Am.  Rep.  696 ;  Robinson  v. 
Weeks,  56  "Me.  102. 

33  Henry  v.  Root,  33  N.  Y.  526;  Fonda  v.  Van  Home,  15  Wend.  (N.  Y.) 
001,  ."0  Am.  Dec.  77;  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W.  772;  Bool  v.  Mix, 
17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285;  Lemmon  v.  Beeman,  45  Ohio  St.  505,  15 


§§  91-94)  INFANTS.  151 

secured  by  not  allowing  the  contract  to  be  enforced  against  him  during 
his  infancy,  and  allowing  him  to  repudiate  it  on  attaining  his  majority. 
Moreover,  such  a  distinction  must  necessarily  be  arbitrary  and  doubt- 
ful, for  it  must  always  be  difficult,  if  not  impossible,  to  say  whether  a 
particular  contract  may  not  possibly  be  beneficial.  It  is  better  to  al- 
low the  infant  to  decide  this  question  for  himself  when  he  becomes  of 
age.^* 

Valid  Contracts — Quasi  Contracts. 

Quasi  contracts,  or  so  called  contracts  created  by  law  because  of  a 
legal  duty  on  the  part  of  the  person  bound,  are  as  binding  on  an  infant 
as  on  an  adult. ^^  The  common  law  creates,  as  an  incident  to  mar- 
riage, a  duty  on  the  part  of  the  husband  to  pay  the  antenuptial  debts  of 
the  wife,  and  this  liability  is  imposed  on  infant  as  well  as  adult  hus- 
bands.^* The  liability  of  an  infant  for  necessaries  furnished  him  is 
quasi  contractual.*'^ 

Same — Contracts  Authorised  by  Law. 

The  rule  that  contracts  of  infants  are  voidable  does  not  apply  to 
contracts  entered  into  by  them  under  authority  or  direction  of  a  statute 
or  of  the  common  law.  For  instance,  a  voluntary  assignment  of  his 
property  by  an  infant  debtor  imprisoned  for  debt,  made  under  a  stat- 
ute allowing  "every  person"  to  make  such  an  assignment,  has  been  held 
valid  and  binding  on  him,  notwithstanding  his  infancy.**  So,  also, 
where  an  infant  executed  a  bond  for  the  support  of  his  bastard  child, 
in  pursuance  of  a  statute,  it  was  held  that  the  statute  applied  to  infants, 
and  that  the  bond  was  valid ;  *^  and  a  contract  of  enlistment  in  the  army 
by  an  infant  has  been  held  valid.*° 

N.  E.  476;  Kendrick  v.  Niesz,  17  Colo.  506,  30  Pac.  245;  Owen  v.  Long,  112 
Mass.  403;  Fetrow  v.  Wiseman,  40  Ind.  148;  Mustard  v.  Woblford's  Heirs, 
15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Hunt  v.  Peate,  5  Cow.  (N.  Y.)  475,  15  Am. 
Dec.  475;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315;  Cole  v.  Pennoyer, 
14  111.  158;  Patchin  v.  Cromach,  13  Vt.  330;  Bozeman  v.  Browning,  31  Ark. 
864;  Weaver  V,  Jones,  24  Ala.  420;  Ridgeley  v.  Crandall,  4  Md.  435;  McDonald 
T.  Sargent,  171  Mass.  492,  51  N.  E.  17 ;  Union  Cent.  Life  Ins.  Co.  v.  Hilliard,  63 
Ohio  St.  478,  59  N.  E.  230,  53  L.  R.  A.  462,  81  Am.  St.  Rep.  644. 

3  4  Pol.  Cont.  52;    1  Pars.  Cont.  244. 

3  5  Bish.  Cont.  §  906. 

3  6  Roach  V.  Quick,  9  Wend.  (N.  Y.)  238;  Cole  v.  Seeley,  25  Vt.  220,  60  Am. 
Dec.  258;  Butler  v.  Breck,  7  Mete,  (^klass.)  164,  39  Am.  Dec.  768;  Mitchinson 
V.  Hewson,  7  Term  R.  348;  Nicholson  v.  Wilborn,  13  Ga.  467;  Anderson  v. 
Smith,  33  Md.  465. 

3  7  Post,  p.  547. 

8  8  People  V.  Mullin,  25  Wend.  (N.  Y.)  698. 

8  9  People  v.  Moores,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272;  and  see  McCall  v. 
Parker,  13  Mete.  (Mass.)  372,  46  Am.  Dec.  735;  Bordentown  Tp.  v.  Wallace,  50 
N.  J.  Law,  13,  11  Atl.  267;  Gavin  v.  Burton,  8  Ind.  69;  Stowers  v.  HoUis, 
S3  Ky.  544.  An  Infant's  recognizance  for  appearance  at  court  is  binding. 
State* V.  WeatLorwax,  12  Kan.  463;    Dial  v.  Wood,  9  Baxt.  (Tenn.)  296. 

«>  U.  S.  V.  Baiubridge,  1  Mason,  71,  Fed.  Cas.  No.  14,497;   Com.  v.  Murray. 


152  CAPACITY  OF  PAKTIES.  (Ch.  6 

It  should  be  mentioned  that  in  some  jurisdictions  the  court  is  au- 
thorized by  statute  to  remove  the  disabilities  of  infants  in  particular 
cases.*^ 

Same — Contract  in  Performance  of  Legal  Obligation. 

Nor  does  the  rule  apply  where,  by  his  contract,  an  infant  has  only 
done  that  which  he  was  bound  by  law  to  do,  and  could  have  been  com- 
pelled to  do.  In  such  a  case  the  contract  is  valid,  and  he  cannot  avoid 
it.*^  Under  this  rule,  a  conveyance  of  land  by  an  infant,  which  he 
could  have  been  compelled  in  equity  to  make,  is  binding  on  him. 
Where,  for  instance,  a  father  purchased  land,  and  took  the  title  in  the 
name  of  his  son,  and  the  son  afterwards  during  his  minority  conveyed 
it  to  a  purchaser  from  his  father,  the  conveyance  was  held  to  be  bind- 
ing on  the  ground  that  he  merely  parted  with  the  naked  title,  and  only 
did  that  which  a  court  of  equity  would  have  compelled  him  to  do.*' 
In  the  leading  case  on  this  point  an  infant  mortgagee  had,  on  payment 
of  the  mortgage  debt  to  the  persons  entitled  to  receive  it,  made  a  recon- 
veyance of  the  land,  and  the  court  held  that,  as  this  was  an  act  which 
by  law  he  could  have  been  compelled  to  perform,  his  voluntary  per- 
formance of  it  was  binding,  notwithstanding  his  infancy.** 

It  is  said  in  a  New  York  case :  "When  an  infant  is  under  a  legal 
obligation  to  do  an  act,  he  may  bind  himself  by  a  fair  and  reasonable 
contract  made  for  the  purpose  of  discharging  the  obligation.  If  this 
be  not  a  general  rule,  it  is  at  least  one  of  pretty  wide  application."  *•* 

Same — Executed  Contract. 

In  some  jurisdictions  it  is  held  that,  if  the  contract  is  so  far  executed 
that  the  infant  has  received  the  consideration,  he  cannot  repudiate  the 

4  Bin.  (Pa.)  487,  5  Am.  Dec.  412;  U.  S.  v.  Blakeney,  3  Grat.  (Va.)  405;  In  re 
Higgins,  IG  Wis.  351;  In  re  Heam  (D.  C.)  82  Fed.  141.  At  common  law  an 
enlistment  was  not  voidable  by  the  infant  or  his  parent.  Morrissey  v.  Perry, 
137  U.  S.  157,  11  Sup.  Ct.  57,  34  L.  Ed.  644. 

41  See  Doles  v.  Hilton,  48  Ark.  305,  3  S.  W.  193;  Brown  v.  Wheelock,  75 
Tex.  385,  12  S.  W.  Ill;  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312;  Emanci- 
pation of  Pochelu,  41  La.  Ann.  331,  6  South.  541;  Succession  of  Gaines,  42 
La.  Ann.  699,  7  South.  788. 

4  2  Co.  Litt.  172a;  2  Kent,  Comm.  242;  Tucker  v.  Moreland,  10  Pet.  58,  9  L. 
Ed.  345;  Prouty  v.  Edgar,  6  Iowa,  353;  Jones  v.  Brewer,  1  Pick.  (Mass.)  314; 
Baker  v.  Lovett,  6  Mass.  78,  4  Am.  Dec.  88;  Trader  v.  Jarvis,  23  W.  Va.  100; 
Nordholt  v.  Nordholt,  87  Cal.  552,  26  Pac.  599,  22  Am.  St.  Rep.  268;  Starr  v. 
Wright,  20  Ohio  St.  97.  A  voluntary  equal  partition  by  an  infant,  since  he 
could  be  compelled  to  make  it,  is  valid.  Baviugton  v.  Clarke,  2  Pen.  &  W. 
(Pa.)  115,  21  Am.  Dec.  432;  Cocks  v.  Simmons,  57  Miss.  183.  So,  also,  a  con- 
tract by  a  minor  with  the  mother  of  his  bastard  child  to  support  it  is  binding. 
Stowers  v.  Hollis,  83  Ky.  544;  Gavin  v.  Burton,  8  Ind.  69.  And  see  note  — , 
supra.  So  a  note  given  by  an  infant  in  settlement  of  his  liability  for  a  tort 
Hay  V.  Tubbs,  50  Vt.  688,  28  Am.  Rep.  519. 

43  Elliott  V.  Horn,  10  Ala.  348,  44  Am.  Dec.  488. 

44  Zouch  V.  Parsons,  3  Burrows,  1801. 

40  People  V.  Moores,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272. 


§§  91-94)  INFANTS.  153 

contract,  and  recover  what  he  has  paid,  or  for  what  he  has  done,  unless 
he  can  and  does  place  the  other  party  in  statu  quo.  This  doctrine,  as 
we  shall  see,  is  not  generally  accepted  in  cases  where  the  consideration 
cannot  be  returned.** 

Void  Contracts. 

As  already  stated,  some  courts  still  hold  that  contracts  manifestly 
and  without  doubt  prejudicial  to  the  infant  are  void.*^  Among  the 
contracts  which  have  been  held  void  upon  this  ground  may  be  mentioned 
conveyances  of  land  without  consideration,**  contracts  of  suretyship,*^ 
and  obligations  with  a  penalty.^**  This,  however,  is  no  longer  the  pre- 
vailing doctrine. 

Voidable  Contracts. 

Under  the  prevailing  doctrine  that  the  contracts  of  an  infant  are 
voidable,  and  not  void,  contrary  to  the  decisions  mentioned  in  the  pre- 
ceding paragraph,  some  courts  have  held  contracts  of  suretyship,"^  and 
bonds  with  a  penalty,^^  merely  voidable.  Probably  all  courts  regard 
as  merely  voidable  purchases  or  sales  and  conveyances  of  real  or  per- 
sonal property,  including  mortgages,  for  a  consideration,^^  partnership 
agreements,**  agreements  to  render  services,""  promissory  notes,"" 
indorsement  of  a  promissory  note,"''  and  the  like."^ 

4  6  Post,  p.  171. 

*7  Ante,  p.  150.  For  a  collection  of  cases  on  the  question  when  a  contract 
by  an  infant  is  to  be  held  void  and  when  merely  voidable,  see  Eh\'ell,  Lead. 
Cas.  30-34,  44-46,  52-55. 

4  8  Robinson  v.  Coulter,  90  Tenn.  705,  18  S.  W.  250,  25  Am.  St.  Rep.  708. 

48  Maples  V.  Wightman,  4  Conn.  376,  10  Am.  Dec.  149. 

60  Fisher  v.  Mowbray,  8  East,  330;    Baylis  v.  Dinely,  3  Maule  &  S.  477. 

01  Owen  V.  Long,  112  Mass.  403;  Fetrow  v.  Wiseman,  40  lud.  14S;  Wil- 
liams V.  Harrison,  11  S.  C.  412;  Harner  v.  Dipple,  31  Ohio  St  72,  27  Am. 
Rep.  496. 

52  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Weav- 
er V.  Jones,  24  Ala.  420;    Reed  v.  Lane,  61  Vt.  481,  17  Atl.  796. 

63  Cole  V.  Pennoyer,  14  111.  158;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800; 
Zouch  V.  Parsons,  3  Burrows,  1794;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec. 
5Si>,  Dixon  v.  Merritt,  21  Minn.  196;  Hastings  v.  Dollarhide,  24  Cal.  195; 
Logaa  V.  Gardner,  136  Pa.  588,  20  Atl.  625,  20  Am.  St.  Rep.  939;  French  v.  Mc- 
Andrew,  61  Miss.  187;  Henry  v.  Root,  33  N.  Y.  526;  Callis  v.  Day,  38  Wis. 
643;   Manning  v.  Johnson,  26  Ala.  446,  62  Am.  Dec.  732. 

64  Duntou  V.  Brown,  31  Mich.  182. 

66  Vent  V.  Osgood,  19  Pick.  (Mass.)  572;  Clark  v.  Goddard,  39  Ala.  164,  84 
Am.  Dec.  777;  Harney  v.  Owen,  4  Blackf.  (Ind.)  337,  30  Am.  Dec.  662.  And 
see  post,  p.  175. 

o«  Goodsell  V.  Myers.  3  Wend.  (N.  Y.)  479;  Fetrow  v.  Wiseman,  40  Ind.  148; 
Wamsley  v.  Lindenbei-ger,  2  Rand.  (Va.)  478 ;  Earle  v.  Reed,  10  Mete.  (Mass.) 
889;  Miuock  v.  Shorti-idge,  21  Mich.  314. 

57  Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101;  Willis  v.  Twam- 
bly,  13  Mass.  204;  Frazier  v.  Massey,  14  Ind.  382;  Briggs  v.  McCabe,  27 
Ind.  S-i7,  89  Am.  Dec.  503. 

68  Lease  by  or  to  infant.     Zouch  v.  Parsons,  3  Burrows,  1794;    Griffith  v. 


154  CAFACITY  OF  PARTIES.  (Ch  6 

Appointment  of  Agent. 

It  is  very  generally  laid  down,  even  by  courts  vi^hlch  do  not  recognize 
the  old  doctrine  as  to  void  and  voidable  contracts,  that  an  infant  can- 
not appoint  an  agent  or  attorney,  and  that  such  appointment,  and  con- 
sequently all  acts  and  contracts  of  the  agent  thereunder,  are  void,"^* 
subject  to  an  exception  where  the  appointment  is  to  do  an  act  to  the 
infant's  advantage,  as  to  receive  seisin. ''°  It  is  noticeable,  however, 
that  nearly  all  the  cases  which  lay  down  this  rule  are  cases  involving 
warrants  of  attorney  to  confess  judgment  and  powers  of  attorney  to 
execute  a  deed ;  and  while  as  to  these  the  rule  appears  to  be  firmly  es- 
tablished, the  tendency  of  the  later  decisions  is  to  confine  the  rule  to 
such  cases,  and  in  other  cases  to  hold  an  infant's  appointment  af  an 
agent  and  the  acts  and  contracts  made  under  it  as  voidable,  and  not 
void." 

Schwenderman,  27  Mo.  412.  Submission  to  arbitration.  Jones  v.  Bank,  8  N. 
Y.  228;  Barnaby  v.  Barnaby,  1  Pick.  (Mass.)  221.  Settlement  of  disputed 
boundary.  Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec.  660.  Com- 
promise of  action  or  claim.  Ware  v.  Cartledge,  24  Ala.  622,  60  Am.  Dec.  489; 
Baker  v.  Lovett,  6  Mass.  78.  An  infant's  promise  to  marry  is  voidable  at  bis 
or  her  option.  HOLT  v.  WARD  CLARENCIBUX,  2  Strange,  937,  Ewell,  Lead. 
Cas.  50;  Hunt  v.  Peake,  5  Cow.  (N.  Y.)  475,  15  Am.  Dec.  475;  Rush  v.  Wick,  31 
Ohio  St.  521,  27  Am.  Rep.  523 ;  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76, 
10  Am.  Dec,  709;  Warwick  v.  Cooper,  5  Sneed  (Tenn.)  659.  And  it  has  been 
held  that  a  statute  providing  that  persons  vmder  the  age  of  21  years  "may  con- 
tract and  be  joined  in  marriage"  does  not  remove  an  infant's  disability  in  this 
respect,  so  as  to  render  him  liable  for  breach  of  promise  to  marry.  McConkey 
V,  Barnes,  42  111.  App.  511. 

ee  Saunderson  v.  Marr,  1  H.  Bl.  75;  Doe  v,  Roberts,  16  M.  &  W.  778;  Fonda 
V.  Van  Home,  15  Wend.  (N.  Y.)  631.  30  Am.  Dec.  77;  Bool  v.  Mix,  17  Wend. 
(N.  Y.)  120,  31  Am.  Dec.  285;  Bennett  v.  Davis,  6  Cow.  (N.  Y.)  393;  Knox  v. 
Flack,  22  Pa.  337;  Waples  v.  Hastings,  3  Har.  (Del.)  403;  Wainwright  v.  Wil- 
kinson, 62  Md.  146;  Philpot  v,  Bingham,  55  Ala.  439;  Pyle  v.  Cravens,  4  Litt. 
(Ky.)  17;  Lawrence's  Lessee  v.  McArter,  10  Ohio,  37;  Armitage  v.  Widoe,  36 
Mich.  124;  TRUEBLOOD  v.  TRUEBLOOD,  8  Ind.  195,  65  Am.  Dec.  756; 
Holden  v.  Curry,  85  Wis.  504,  55  N.  W.  965;  Wambole  v.  Foote,  2  Dak.  1,  2  N. 
W.  239.  See,  also,  Bartholomew  v.  Dighton,  Cro.  Eliz.  424;  Whittingham's 
Case,  8  Co.  42b;  Dexter  v.  Hall,  15  Wall.  9,  25,  21  L.  Ed.  73;  Tucker  v.  More- 
land,  10  Pet.  58,  68,  9  L.  :^d.  345;  Flexner  v.  Dickerson,  72  Ala.  318;  Cole  v. 
Pennoyer,  14  111.  158;  Fetrow  v.  Wiseman,  40  Ind.  148,  155;  Burns  v.  Smith, 
29  Ind.  App.  181,  64  N.  E.  94,  94  Am.  St.  Rep.  208. 

00  Zouch  V,  Parsons,  3  Burr.  1794,  1805,  1808.  See  Duvall  v.  Graves,  7  Bush. 
(Ky.)  46L 

fli  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;  Welch  v.  Welch,  103 
Mass.  562;  Moley  v.  Brine,  120  Mass.  324;  Fairbanks  v.  Snow,  145  Mass.  153, 
13  N.  E.  596,  1  Am.  St  Rep.  446,  per  Holmes,  J. ;  Hardy  v.  Waters,  38  Me.  450 ; 
Towle  V.  Dresser,  73  Me.  252;  Patterson  v.  Lippincott,  47  N.  J.  Law,  457,  1 
Atl.  506,  54  Am.  Rep.  178;  Hastings  v.  Dollarhide,  24  Cal.  195;  Coursolle  v. 
Weyerhauser,  69  Minn.  328,  72  N,  W.  697.    See  Tiffany,  Ag.  94. 


§§  95-97)  LIABILITY    FOR    NECESSARIES.  155 

SAME— LIABILITY  FOR  NECESSARIES. 

95.  An  infant  is  liable  for  the  reasonable  value  of  necessaries  for- 
nisbed  bim. 

96«  What  are  necessaries  -will  depend  npon  the  particular  circum- 
stances. The  term  includes  whatever  is  reasonably  needed  foP 
his  subsistence,  health,  coiufort,  or  education,  taking  into  con- 
sideration his  age,  state,  and  condition  in  life.  The  foUoiving 
rules  may  be  stated: 

(a)  The  things  furnished  must  concern  his  person,  and  not  his  estate. 

(b)  He  is  not  liable  for  money  borro\ired,  and  expended  for  necessa- 

ries, unless  the  lender  sees  that  it  is  so  expended. 
(o)    An  infant   is  liable   for   necessaries   furnished   his   %vife,   and,   in 

some  jurisdictions,  children, 
(d)    Persons  supplying  an  infant  act  at  their  peril,  and  cannot  re- 
cover if  the   actual   circumstances  ^vere  such  that  the  things 
furnished  xrere  not  necessai'ies. 

97*  The  liability  of  an  infant  for  necessaries  is  not  contractual,  but 
quasi  contractual,  and  his  exi^ress  contract  for  necessaries  ia 
voidable;  but  in  some  jurisdictions  a  recovery  to  the  extent 
of  their  reasonable  value  is  alloxtred  in  an  action  upon  the  ex- 
press contract. 

Among  the  contracts  which  are  manifestly  for  the  benefit  of  an  in- 
fant, and  hence  binding,  it  is  frequently  said  are  his  contracts  for  neces- 
saries. The  obligation  of  an  infant  to  pay  for  necessaries  furnishea 
to  him  is,  however,  quasi  contractual,  rather  than  contractual.  This  is 
shown  by  the  fact  that  it  is  generally  held  that  he  is  liable  to  pay,  not 
the  price,  but  the  reasonable  value,  of  the  necessaries. °^ 

What  are  Necessaries. 

Lord  Coke  has  said  that  an  infant's  necessaries  are  "his  necessary 
meat,  drinke,  apparel,  necessary  physicke,  and  such  other  necessaries, 
and  likewise  for  his  good  teaching  or  instruction,  whereby  he  may 
profit  himself  afterwards."  '*  Under  this  rule  necessaries  will  include 
whatever  is  reasonably  needed  for  the  infant's  subsistence,  such  as  food 
and  lodging ;  ®*  for  his  health,  such  as  medicine,  and  services  of  a  phy- 
sician or  nurse  in  case  of  sickness  ;°°    for  his  comfort,*^  and  for  his 

82  Post,  p.  547. 

8  3  Co.  Litt.  172a.  For  a  good  discussion  of  the  law  In  regard  to  necessaries, 
see  Ryder  r.  Wombwell,  L.  R.  3  Exch.  95. 

6*  Barnes  v.  Barnes,  50  Conn.  572;  Rivers  v.  Gregg,  5  Rich.  Eq.  (S.  C.)  274. 
Dinnei's  supplied  to  a  student  at  private  rooms  at  a  university,  prima  facie  not 
necessaries.  Broolier  v.  Scott,  11  Mees.  &  W.  67;  Wharton  v.  McKenzic,  5 
Q.  B.  606.  Hotel  bill.  Watson  v.  Cross,  2  Duv.  (Ky.)  147.  Dwelling  house 
not  a  necessary.    Allen  v.  Lardner,  78  Hun,  603,  29  N,  Y.  Supp.  213. 

68  Glover  &  Co.  v.  Ott's  Adm'r,  1  McCord  (S.  C.)  572;  Werner's  Appeal,  91 
Pa.  222.    And  see  Hoyt  v.  Casey,  114  :Mass.  397,  19  Am.  Rep.  371;   Wailing  v. 

86  See  note  6U  on  loUowiug  page.  .  . ,  ,  ^ 


156  CAPACITY   OP   PARTIES.  (Ch.  G- 

education,"''  The  term  is  not  limited  to  what  is  necessary  to  the  actual 
support  of  life,  but  extends  "to  articles  fit  to  maintain  the  particular 
person  in  the  state,  station,  and  degree  in  life  in  which  he  is,"  so  that 
things  may  be  necessary  for  one  person  which  would  not  be  necessary 
for  another  in  a  different  station  in  life.®* 

The  question  must  therefore  depend  on  the  circumstances  of  each 
particular  case,  though  there  are  some  things,  of  course,  which  are  ob- 
viously incapable  of  being  deemed  necessaries.  A  wild  animal,  or  a 
steam  roller,  or  a  railroad  engine,  cannot,  under  any  circumstances,  be 
deemed  such.  Nor  can  things  intended  for  ornament,  and  not  for 
use,®*  or  merely  for  pleasure,^ °  be  regarded   as  necessary.     Again, 

Toll,  9  .Johns.  (N.  Y.)  141.  A  horse  may  be  necessary  for  health,  Hart  v.  Pra- 
ter, 1  Jur.  623;  Harrison  v.  Fane,  1  Man.  &  G.  550;  but  not  if  for  pleasure,  note 
70,  infra. 

66  Dentist's  services.  Strong  v.  Foote,  42  Conn.  203.  An  infant  is  liable  for 
reasonable  attorney's  fees  for  defending  him  in  a  criminal  prosecution. 
Askey  v.  Williams,  74  Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176;  Barker  v.  Hib- 
bard,  54  N.  H.  539,  20  Am.  Rep.  IGO.  And  see  Muuson  v.  Washband,  31  Conn. 
303,  83  Am.  Dec.  151;  Crafts  v.  Carr  (R.  I.)  53  Atl.  275,  60  L.  R.  A.  128.  Wed- 
ding outfit.  Jordan  v.  Coftield,  70  N.  C.  110;  Sams  v.  Stockton,  14  B.  Mon. 
(Ky.)  232.  Clothing.  Mackerell  v.  Batchelor,  Cro.  Eliz.  583;  Glover  &  Co.  v. 
Ott's  Adm'r,  1  McCord  (S.  C.)  572.  But  not  for  an  unnecessary  supply  of 
clothing.  Johnson  v.  Lines,  6  Watts  &  S.  80,  40  Am.  Dec.  542;  Burghart  v. 
Angerstein,  6  Car.  &  P.  690. 

8  7  Common-school  education,  but  not  generally  a  college  education,  though 
the  latter  may,  \mder  some  circumstances,  be  a  necessary.  Middlebury  Col- 
lege v.  Chandler,  16  Vt.  686,  42  Am.  Dec.  537;  Pickering  v.  Gunning,  W. 
Jones,  182.  Board  bill  contracted  by  an  infant  to  enable  him  to  attend  school 
is  a  necessary  expense.  Kilgore  v.  Rich,  83  Me.  305,  22  Atl.  176,  12  L.  R.  A. 
859,  23  Am.  St.  Rep.  780.  Professional  education  not  necessary.  Tm-ner  v. 
Galther,  83  N.  C.  357,  35  Am.  Rep.  574;  Bouchell  v.  Clary,  3  Brev.  (S.  O.) 
194. 

'38  Peters  v,  Fleming,  6  Mees.  &  W.  46;  Ewell,  Lead.  Cas.  56;  Ryder  v. 
Wombwell,  L.  R.  4  EXch.  32;  McKanna  v.  Merry,  61  111.  177;  Breed  v.  Judd, 
1  Gray  (Mass.)  455;  Squier  v.  Hydliff,  9  Mich.  274;  Wilhelm  v.  Hardman,  13 
Md.  144;  Jordan  v.  Coffield,  70  N.  C.  110;  Nicholson  v.  Spencer,  11  Ga.  610. 
Board  of  four  horses  for  six  months,  the  principal  use  of  whicb  was  in  the 
business  of  an  infant  as  a  hackman,  though  the  horses  were  occasionally 
used  to  carry  his  family  out  to  drive,  was  held  not  necessary.  Merriara  v. 
Cunningham,  11  Cush.  (Mass.)  40.  Livery  for  the  servant  of  an  infant  offlcei 
in  the  army  was  held  a  necessary.  Hand  v.  Slaney,  8  Term  R.  578.  And  see 
Coates  V.  Wilson,  5  Esp.  152.  But  not  cockades  ordered  for  his  soldiers. 
Hand  v.  Slaney,  supra.  "Articles  of  mere  luxury  are  always  excluded,  though 
luxurious  articles  of  utility  are  in  some  cases  allowed."  Chappie  v.  Cooper, 
13  Mees.  &  W.  252. 

68  Peters  v.  Fleming,  6  Mees.  &  W.  42;   McKanna  v.  Merry,  61  111.  179. 

7  0  McKanna  v.  Merry,  61  111.  179;  Saundere  v.  Ott's  Adm'r,  1  McCord  (S. 
C.)  572;  Beeler  v.  Young,  1  Bibb  (Ky.)  519.  Horse,  carriage,  or  bicycle  not  or- 
dinarily a  necessity.  House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am. 
Rep.  189;  Miller  v.  Smith,  26  Minn.  2-18,  2  N.  W.  942,  37  Am.  Rep.  407;  Pyne  v. 
Wood,  145  Mass.  558,  14  M.  E.  775;   Beeler  v.  Young,  1  Bibb  (Ky.)  519;  How- 


95-97)  LIABILITY    FOR   NECESSARIES.  157 


things  may  be  of  a  useful  or  necessary  character,  but  the  quality  or 
quantity  supplied  may  take  them  out  of  the  character  of  necessaries.'^^ 
Elementary  text-books  might  be  necessary  to  a  law  student;  but  not 
a  rare  edition,  nor  a  great  number  of  copies  of  a  single  book.  Things 
necessary  to  a  person  in  one  station  of  life  might  not  be  necessary  to  a 
person  in  a  different  station.  Again,  things  not  usually  necessary  may 
become  so  from  the  circumstances  of  the  infant.  Medical  attendance 
and  expensive  articles  of  food  may  ordinarily  be  dispensed  with,  but 
may  become  necessary  in  case  of  ill  health. 

Things  with  which  an  infant  is  already  sufficiently  supplied  are  not 
necessary.''^  An  infant  residing  under  the  care  of  his  father  or  guard- 
ian, and  supported  by  him,  is  not  liable  even  for  necessaries ;  and  it 
even  seems  that  this  is  so  notwithstanding  the  poverty  of  his  father.''^ 
It  has  been  held  that  the  fact  that  an  infant  is  abundantly  supplied  with 
money,  so  that  he  can  purchase  necessaries  for  cash  if  he  chooses,  is 
not  equivalent  to  being  supplied,  and  he  will  nevertheless  be  liable  for 
necessaries  bought  on  credit;   but  there  is  authority  to  the  contrary.''* 

Mtist  Concern  His  Person. 

The  things  furnished,  to  come  within  the  term  "necessaries,"  must 
concern  the  person  of  the  infant,  and  not  his  estate.  An  infant,  there- 
fore, is  not  bound  by  contracts  for  things  necessary  to  carry  on  a  busi- 

ard  V.  Simpkins,  70  Ga.  322.  A  horse,  however,  may  be  necessary  for  health. 
Note  65,  supra.  Money  furnished  to  enable  an  infant  to  take  a  necessary 
trip  may  be  necessary,  but  not  to  take  a  trip  for  pleasure.  Breed  v.  Judd,  1 
Gray  (Mass.)  455;  McKanna  v.  Merry,  61  111.  177.  Tobacco  Is  prima  facie  not 
necessary     Bryant  v.  Richardson,  12  Jur.  (N.  S.)  300. 

71  Burghart  v.  Angerstein,  6  Car.  &  P.  690;  Johnson  v.  Lines,  6  Watts  &  S. 
(Pa.)  80,  40  Am.  Dec.  542;   Nicholson  v.  Spencer,  11  Ga.  610. 

T2  Barnes  v.  Toye,  13  Q.  B.  Div.  410;  Davis  v.  Caldwell,  12  Cusb.  (Mass.) 
512;  Kline  v.  L'Amoreux,  2  Paige  (N.  Y.)  419,  22  Am.  Dec.  652;  Rivers  v. 
Gregg,  5  Rich.  Eq.  (S.  C.)  274;  McKanna  v.  Merry,  61  111.  ISO;  NicholGou  v. 
Wilborn,  13  Ga.  467;  Balnbridge  v.  Pickering,  2  W.  Bl.  1325;  Burghart  v. 
Angerstein,  6  Car.  &  P.  690:  Perrin  v.  Wilson,  10  Mo.  451;  Guthrie  v.  Murphy, 
4  Watts   (Pa.)  80,  28  Am.  Dec.  681;   note  71,  supra. 

78  Hoyt  V.  Casey,  114  Mass.  397,  19  Am.  Rep.  371;  Bainbridge  v.  Pickering, 
2  W.  Bl.  1325;  Ewell,  Lead.  Cas.  55;  Wailing  v.  Toll,  9  Johns.  (N.  Y.)  141; 
Guthrie  v.  Murphy,  4  Watts  (Pa.)  SO,  28  Am.  Dec.  681;  Decell  v.  Lewenthal, 
57  Miss.  331,  34  Am.  Rep.  449;  Kline  v.  L'Amoreux,  2  Paige  (N.  Y.)  419,  22 
Am.  Dec.  652;  Perrin  v.  Wilson,  10  Mo.  451;  TRAINER  v.  TRUMBULL,  141 
Mass.  530,  6  N.  E.  761;  Jones  v.  Colvin,  1  McMul.  (S.  C.)  14;  Elrod  v.  Myers, 
2  Head  (Tenn.)  33,  75  Am.  Dec.  749;  Kraker  v.  Byram,  13  Rich.  Law  (S.  C.) 
163;  Freeman  v.  Bridger,  49  N.  C.  4,  67  Am.  Dec.  258;  Hull's  Assignees  v. 
Connolly,  3  McCord  (S.  C.)  6,  15  Am.  Dec.  612.  A  complaint,  however,  is  not 
demurrable  for  failure  to  allege  refusal  of  the  parent  or  guardian  to  supply 
the  infant,  or  that  there  was  no  person  who  could  and  would  support  him. 
Goodman  v.  Alexander,  165  N.  Y.  289,  59  N.  E.  145,  55  L.  R.  A.  781. 

74  Burghart  v.  Hall,  4  Mees.  «fe  W.  727.  But  see  Rivers  v.  Greggs,  5  Rich. 
Eq.  (S.  C.)  274;   Barnes  v.  Toye,  13  Q.  B.  Div.  410. 


158  CAPACITY   OF   PARTIES.  (Ch.  6 

ness  into  which  he  enters.^"  He  is  not  liable  for  materials  purchased 
and  used  for  the  erection  of  a  house  on  his  land/®  and  it  has  even  been 
held  that  he  is  not  liable  for  the  expense  of  repairing  his  dwelling  house 
on  a  contract  made  by  him  therefor,  although  the  repairs  may  have 
been  necessary  to  prevent  immediate  and  serious  injury  to  the  house.'' ^ 

Money. 

Money,  as  such,  is  not  regarded  as  necessary.  "An  infant,"  it  was 
said  in  a  New  York  case,  "is  not  answerable  for  money  borrowed, 
though  expended  by  him  for  necessaries;  nor  for  money  borrowed  to 
buy  necessaries,  unless  it  was  actually  so  applied.  And  perhaps  the 
infant  is  not  answerable  in  that  case,  unless  the  lender  either  lays  out 
the  money  himself,  or  sees  it  laid  out,  for  necessaries.  But  where  this 
is  done  the  infant  is  answerable  for  the  money  the  same  as  he  would 
have  been  for  the  necessaries  had  they  been  directly  furnished  by  the 
lender."  '^ 

Necessaries  to  Wife  and  Children. 

A  man  is  bound  by  law  to  support  and  care  for  his  wife,  and  an  in- 
fant is  therefore  liable  for  necessaries  furnished  her.'^^     And  he  has 

7  5  House  V.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Mason 
V.  Wright,  13  Mete.  (Mass.)  306;  Stern  v.  Meikleham,  56  Hun,  475,  10  N.  Y. 
Supp.  216;  Paul  v.  Smith,  41  Mo.  App.  275;  Decell  v.  Lewenthal,  57  Miss. 
331,  34  Am.  Hep.  449;  Merriam  v.  Cunningham,  11  Cush.  (Mass.)  40;  State  v. 
Howard,  88  N.  C.  680;  Wood  v.  Losey,  50  Mich.  475,  15  N.  W.  557;  Dilk  v. 
Keighley,  2  Esp.  480. 

7  8  Womock  V.  Loar  (Ky.)  11  S.  W.  438;  Freeman  v.  Bridger,  49  N.  C.  1,  67 
Am.  Dec.  258;  Price  v.  Jennings,  G2  Ind.  111.  Nor  is  his  property  subject  to 
a  mrchanic's  lien  therefor.  Bloomer  v.  Noian,  36  Neb.  51,  53  N.  W.  1039,  38 
Am.  St.  Rep.  690. 

7  7  Phillips  V.  Lloyd,  18  R.  I.  99,  25  Atl.  909;  Tupper  v.  Cadwell,  12  Mete. 
(Mass.)  559,  46  Am.  Dec.  704;  Wallis  v.  Bardwell,  126  Mass.  366;  West  t. 
Gregg,  1  Grant  (Pa.)  Cas.  53.  Nor  on  a  contract  for  insurance  of  his  property. 
New  Hampshire  Ins.  Co.  v.  Noyes,  32  N.  H.  345.  Nor  for  attorney's  fees  in 
a  suit  to  protect  his  property,  Phelps  v.  Worcester,  11  N.  H.  51.  Contra,  Ep- 
person V.  Nugent,  57  Miss.  45,  34  Am.  Rep.  434.  Nor  for  a  loan  of  money  to 
paj'  off  incumbrances.  Bicknell  v.  Bicknell,  111  Mass.  265;  Magee  v.  Welsh, 
18  Cal.  155. 

7  8  Randall  v.  Sweet,  1  Denio  (N.  Y.)  460.  And  see  Kilgore  v.  Rich,  83  Me. 
305,  22  Atl.  176,  12  L.  R.  A.  859,  23  Am.  St.  Rep.  780;  Swift  v.  Bennett,  10 
Cush.  (Mass.)  436;  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345;  Price  v.  San- 
ders, 60  Ind.  310;  Haine's  Adm'r  v.  Tarrant,  2  Hill  (S.  C.)  400;  Conn  v.  Co- 
burn,  7  N.  H.  368,  26  Am.  Dec.  746;  Beeler  v.  Young.  1  Bibb  (Ky.)  519;  Earle 
V.  Peale,  1  Salk.  387.  He  may,  however,  be  held  liable  in  equity  for  money 
borrowed  and  expended  by  him  for  necessaries.  Price  v.  Sanders,  60  Ind. 
310;  Watson  v.  Cross,  2  Duv.  (Ky.)  147;  Hickman  v.  Hall's  Adm'rs,  5  Litt. 
(Ky.)  338;   Beeler  v.  Young,  1  Bibb    (Ky.)  521. 

70  Confine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  428;  Price  v.  Sanders,  60  Ind, 
315;  Chapman  v.  Hughes,  61  Miss.  339;  Chappie  v.  Cooper.  13  Moes.  &  W. 
252,  259;  Turner  v.  Frisby  1  Strange,  168;  People  v.  Moores,  4  Denio  (N. 
'^.)  5^0,  47  Am.  Dec.  272. 


§§  95-97)  LIABILITY    FOR   NECESSARIES.  159 

also  been  held  liable  for  necessaries  furnished  to  his  child.'"     There  is, 
however,  authority  for  the  contrary  view  as  to  children.®^ 

Persons  Supplying  Infant  Act  at  Their  Peril. 

Whether  things  supplied  to  an  infant  were  necessaries  is  to  be  de- 
termined by  the  infant's  actual  circumstances.  If  a  tradesman  supplies 
expensive  goods  to  an  infant  because  he  thinks  that  the  infant's  circum- 
stances are  better  than  they  really  are,  or  if  he  supplies  goods  of  a 
useful  class,  not  knowing  that  the  infant  is  already  sufficiently  sup- 
pHed,  he  does  so  at  his  peril." 

Question  of  Lazu  or  Fact. 

Difficulty  has  arisen  in  determining  the  respective  provinces  of  the 
court  and  jury  in  ascertaining  whether  things  supplied  to  an  infant 
were  necessaries.  It  is  frequently  stated  in  the  American  cases  that 
the  question  whether  articles  come  within  the  class  of  necessaries  is 
for  the  court,  and  that  the  question  whether  they  were  necessaries  in 
fact  is  for  the  jury.^'  In  England  it  has  been  settled  that  the  question 
whether  the  articles  were  necessaries  is  one  of  fact,  and  therefore  for 
the  jury;  but  that,  like  other  questions  of  fact,  it  should  not  be  left  to 
the  jury  unless  there  is  evidence  on  which  they  can  reasonably  find  in 
the  affirmative.®*  Practically,  there  is  little  difference  in  the  two  rules, 
for  the  cases  involving  articles  intrinsically  incapable  of  being  neces- 
saries are  rare,  and  the  question  in  most  cases  depends  on  the  particular 
circumstances. 

Express  Contract  for  Necessaries.  '    ,  ' 

The  obligation  of  an  infant  to  pay  for  necessaries  being  quasi  con- 
tractual, he  is  liable  without  an  express  contract."     The  law  creates 

so  Van  Valklnburgh  v.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am,  Dec.  395;  Ex 
parte  Ryder,  11  Paige  (N.  Y.)  185.  42  Am.  Dee.  109;   post,  pp.  499,  547. 

81  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Eep.  499.  See  Tiffany,  Pers.  &  Dom. 
Rel.  230,  269. 

8  2  Brayshaw  v.  Eaton,  7  Scott,  at  page  187;  Barnes  v.  Toye,  13  Q.  B.  Div. 
410;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am.  Dec.  542;  Kline  v. 
L'Amoreux,  2  Paige  (N.  Y.)  419,  22  Am.  Dec.  652;  Davis  v.  Caldwell,  12  Cush. 
(Mass.)  513;  Rivers  v.  Gregg,  5  Rich.  Eq.  (S.  C.)  274;  Monumental  Bldg. 
Ass'n  V.  Herman,  33  Md.  131;  Perrin  v.  Wilson,  10  Mo.  451;  Nicholson  v. 
Spencer,  11  Ga.  607. 

83  Tupper  V.  Cadwell,  12  Mete.  fMass.)  559,  563,  46  Am.  Dec.  704;  Merriam 
V.  Cunningham,  11  Cush.  (Mass.)  40,  44 ;  Bent  v.  Manning,  10  Vt.  225 ;  Stanton 
V.  Willson,  3  Day  (Conn.)  37,  56,  3  Am.  Dec.  255;  Glover  v.  Ott's  Adm'r,  1 
McCord  (S.  C.)  572;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Grace  v.  Hale,  2 
Humph.  (Tenn.)  27,  36  Am.  Dec.  296;   McKanna  v.  Merry,  61  111.  177. 

8  4  Ryder  V.  Wombwell,  L.  R.  3  Exch.  93.  See,  also,  Peters  v.  Fleming,  6 
M.  &  W.  42;  Wharton  v.  Mackenzie,  5  Q.  B.  606;  Davis  v.  Caldwell,  12  Cush. 
(Mass.)  512,  per  Shaw,  C-  J.;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am. 
Dec.  542;   Mohney  v.  Evans,  51  Pa.  80. 

8B  Gay  v.  Ballou,  4  Wend.   (N.  Y.)  403,   21  Am.   Dec.   158;    TRAINER  Y. 


160  CAPACITY   OF   PARTIES.  (Cll.  G 

an  obligation  on  his  part  to  pay  what  the  necessaries  are  reasonably 
worth,  but  his  contract  is  voidable.^'  If  he  has  given  his  note  or  other 
negotiable  instrument  in  payment,  the  seller  can  recover  no  more  than 
the  reasonable  value,  and  on  principle,  in  such  a  case,  there  can  be 
no  recovery  on  the  note.^'^  In  many  jurisdictions,  however,  anomal- 
ously, an  action  may  be  maintained  upon  the  contract,  but  the  real  value 
will  be  inquired  into,  and  the  recovery  limited  to  that  amount.' 


88 


U 


SAME— RATIFICATION  AND  AVOIDANCE.  qC^ 


-^^ 


98.  Wliere  tlie  contract  of  an  infant  is  voidable,  lie  may  ratify  it,  and 
thereby  render  it  binding;  or  be  may  disaffirm  it,  and  thereby 
render  it  void. 

Where  the  contract  of  an  infant  is  voidable  only,  he  may  ratify  it  on 
attaining  his  majority,  and  thereby  assume  the  rights  and  liabilities 
arising  from  it ;  or  he  may,  before  ratification,  but  not  afterwards,  dis- 
affirm or  repudiate  it,  and  thereby  escape  any  liability  under  it.  The 
reader  will  remember  that  such  a  ratification  is  an  illustration  of  the 
class  of  cases  in  which  a_pastj:onsideration  will  support  a  subsequent 
£rpmise.^°  Some  contracts  are  valid  unless  they  are  rescinded.  Other 
contracts  are  invalid  unless  they  are  ratified. 

When  Disaffirmance  Necessary. 

The  rule  seems  to  be  that,  where  an  infant  acquires  an  interest  in 
permanent  property,  to  which  obligations  attach,  or  enters  into  a  con- 
tract which  involves  continuous  rights  and  duties,  benefits  and  liabili- 
ties, and  takes  benefits  under  the  contract,  he  may  become  bound,  un- 
less he  expressly  disaffirms  the  contract.**** 

TRUMBULL,  141  Mass.  530,  6  N.  B.  761;  Gregory  v.  Lee,  64  Conn.  407, 
30  Atl.  53,  25  L.  R.  A.  618.     See  Keener.  Quasi  Contracts,  20. 

86  Earle  v.  Reed,  10  Mete.  (Mass.)  387;  Davis  v.  Gay,  141  Mass.  531,  6 
N.  E.  549;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Parsons  v.  Keys,  43  Tex.  557; 
Hyer  v.  Hyatt,  8  Crancti,  C.  C.  276,  Fed.  Gas.  No.  0,977;  Dubose  v.  Wlieddon, 
4  McCord  (S.  C.)  221;   Locke  v.  Smith,  41  N.  H.  346. 

8  7  Swasey  v.  Vandertiey den's  Adm'r,  10  Johns.  (N,  T.)  33;  Fenton  v.  White, 

4  N.  J.  Law,  111;  McMinn  v.  Richmonds,  6  Yerg.  (Tenn.)  9;  Bouchell  v. 
Clary,  3  Brev.  (S.  C.)  194;   McCrillis  v.  How,  3  N.  H.  348;   Henderson  v.  Fox, 

5  Ind.  489;  Morton  v.  Steward,  5  Til.  App.  533. 

8  8  Earle  v.  Reed,  10  Mete.  (Mass.)  387;  Bradley  v.  Pratt,  23  Vt  378;  Du- 
bose V.  Wbeddon,  4  McCord  (S.  C.)  221;  Conn  v.  Coburn,  7  N.  H.  368,  26  Am. 
Dec.  746;  Aaron  v.  Harley,  6  Rich.  Law  (S.  C.)  20;  Asliey  v.  Williams,  74 
Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176;  Guthrie  v.  Mon'is,  22  Ark.  411; 
TRAINER  V.  TRUMBULL,  141  Mass.  530,  6  N.  E.  761. 

80  Ante,  p.  14a 

90  Anson,  Contr.  (8th  Ed.)  109.  Some  cases  declare  that,  while  an  infant's 
executory  contracts  are  inoperative  until  satisfied,  his  executed  contracts  are 
good  imtil  rescinded.    Minock  v.  Shortridge,  21  Mich.  304;  Edgerly  v.  Stiaw,  25 


§  98)  RATIFICATION   AND  AVOIDANCE.  161 

As  illustrating  this  rule,  an  infant  lessee,  who  occupies  the  premises 
after  reaching  his  majority,  is  liable  for  arrears  of  rent  which  accrued 
during  his  minority.^^  Persons  who  have  become  possessed  of  shares 
in  a  corporation  during  infancy,  if  they  hold  them  after  they  reach 
their  majority,  are  liable  for  calls  which  accrued  while  they  were  in- 
fants "^  An  infant  may  become  a  partner,  and  at  common  law  may 
be  entitled  to  benefits,  though  not  liable  for  debts,  arising  from  the 
partnership  during  his  infancy ;  though  equity  would  not  allow  him 
to  claim  the  benefits  without  being  charged  with  the  losses.  Unless, 
on  attainment  of  majority,  there  is  an  express  rescission  and  disclaimer 
of  the  partnership,  the  infant  will  be  liable  for  losses  accruing  after  he 
became  of  age.  By  holding  himself  out  as  a  partner  he  contracts  a 
continual  obligation,  and  that  obligation  remains  until  he  puts  an  end 
to  it  by  a  disclaimer.®'  And  so,  where  shares  in  a  corporation  were 
assigned  to  an  infant  who  attained  his  majority  some  months  before 
an  order  was  made  for  winding  up  the  company,  it  was  held  that,  in 
the  absence  of  any  disclaimer  of  the  shares,  he  was  liable  as  a  con- 
tributory.** 

When  Ratification  is  Necessary. 

The  cases  of  which  we  have  just  been  speaking,  and  which  require 
an  express  disclaimer  to  avoid  the  effect  of  the  contract,  are  all  cases 
in  which  an  interest  was  acquired  in  permanent  property  to  which  lia- 
bilities attached,  or  in  which  the  contract  entered  into  by  the  infant 
involved  contmuous  rights,  duties,  and  liabilities.     If,  on   the  other 

N.  H.  514,  57  Am.  Dec.  349;  Beardsley  v.  Hotchldss,  96  N.  Y.  201.  But  the 
cases  are  ia  conflict,  as  is  siiown  by  the  different  views  entertained  as  to 
whether  a  convey:nce  is  ratified  by  silence  and  acquiescence  after  majority. 
Post,  p.  169.  On  the  other  hand,  if  an  infant  purchases  property  and  re- 
tains it  for  an  unreasonable  time  after  majority  without  disaflii-mance,  he  is 
generally  held  to  have  ratified.  Boyden  v.  Boyden,  9  Mete.  (Mass.)  519;  Ellis 
V.  Alford   64  ^Nliss.  8,  1  South.  155;   post,  p.  168. 

91  Rolle,  Abr.  731. 

9  2  Noi-thwestwn  R.  Co.  v.  McMichael,  5  Eixch.  114.  It  was  said  in  this 
case:  "They  have  been  treated,  therefore,  as  persons  in  a  different  situation 
from  mere  contractors,  for  then  they  would  have  been  exempt;  but  in  truth 
they  are  purchasers  who  have  acquired  an  interest,  not  in  a  mere  chattel,  but 
in  a  subject  of  a  permanent  nature,  either  by  contract  with  the  compuny,  or 
purchase  or  devolution  from  those  who  have  contracted,  and  with  certain  obli- 
gations attached  to  it  which  they  were  bound  to  discharge,  and  have  thereby 
been  placed  in  a  situation  analogous  to  an  infant  purchaser  of  real  estate,  who 
has  taken  possession,  and  thereby  becomes  liable  to  all  the  obligations  at- 
tached to  the  estate:  for  instance,  to  pay  rent  in  the  case  of  a  lease  rendering 
rent,  *  •  ♦  unless  they  have  elected  to  waive  or  disagree  the  purchase 
altogether,  either  during  infancy  or  at  full  age,  at  either  of  which  times  it  is 
competent  for  an  infant  to  do  so." 

93  Goode  V.  Harrison,  5  Barn.  &  Aid.  159;   Miller  v.  Sims,  2  Hill  (S.  C.)  479. 

9*  Lumsden's  Case,  4  Ch.  App.  31. 

Claek  Cont.  (2d  Ed.) — 11 


162  CAPACITY   OF  PARTIES.  (Ch.  6 

hand,  the  promise  of  the  infant  is  to  perform  some  isolated  act,  or  if 
the  contract  is  wholly  executory,  it  will  not  be  binding  on  him  unless 
he  expressly  ratifies  it  on  coming  of  age.®^  As  we  have  seen,  if  a  per- 
son who  has  entered  into  a  partnership  during  his  minority  fails  to  dis- 
affirm the  agreement  after  reaching  his  majority,  and  so  holds  himself 
out  as  a  partner,  he  will  be  liable  for  debts  of  the  firm  contracted  after 
he  became  of  age ;  but  he  will  not  be  Hable  for  debts  of  the  firm  con- 
tracted during  his  minority,  unless  he  ratifies  them.^'  Some  courts 
hold  that  his  ratification  of  the  partnership  agreement  is  a  ratification 
of  debts  of  the  firm  contracted  during  his  minority,"''  and  this  would 
seem  the  proper  doctrine ;  but  the  contrary  has  been  held." 


SAME— WHO  MAY  AVOID  CONTRACT. 

99.  Tlie  privilege  of  infancy  is  personal  to  the  infant,  and  he  alone 

can  take  advantage  of  it  during  his  life  and  sanity. 

100.  On  his  death,  or  if  he  becomes  insane,  his  contracts  may  be  avoid- 

ed by  his  heirs,   personal  representatives,    or   conservator  or 
guardian. 

101.  The  other  party  to  the  contract,  not  being  himself  under  dis- 

ability, is  bound  if  the  infant  chooses  to  hold  him. 

The  privilege  of  infancy  is  intended  to  protect  the  infant,  and  dur- 
ing his  life  and  sanity  he  alone  can  take  advantage  of  it."^     It  is  even 

BB  Whitney  v.  Dutch,  14  Mass.  460,  7  Am.  Dee.  229;  Carrell  v.  Potter,  23 
Mich.  379;    Savage  v.  Lichlyter,  59  Ark.  1,  26  S.  W.  12.    See,  also,  post.  p.  166. 

9  6  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27;  Todd  v.  Clapp,  118  Mass. 
495;    Bush  v.  Linthicum,  59  Md.  344. 

»T  Salinas  v.  Bennett,  33  S.  C.  285,  11  S.  E.  968;  Miller  v.  Sims,  2  HUl  (S. 
O.)  479. 

9  8  Mehlhop  V.  Eae,  90  Iowa,  30,  57  N.  W.  650;  Crabtree  v.  Ma.v,  1  B.  Mon. 
(Ky.)  289;  Minock  v.  Shortridge,  21  Mich.  304.  And  see  cases  cited  in  note 
06,  supra. 

09  Keane  v.  Boycott,  2  H.  Bl.  511,  E}well's  Cas.  17;  HOLT  y.  WARD 
CLARENCIEUX,  2  Strange,  937;  Nightingale  v.  Withiugton,  15  Mass.  272, 
8  Am.  Dec.  101;  Mansfield  v.  Gordon,  144  Mass.  168,  10  N,  E.  773;  Harris 
V.  Ross,  112  Ind.  314,  13  N.  E.  873;  Hartuess  v.  Thompson,  5  Johns.  (N.  Y.) 
160;  Beardsley  v.  Hotchkiss,  96  N.  Y.  201;  Baldwin  v.  Rosier  (C.  C.)  48 
Fed.  810;  Hooper  v.  Payne,  94  Ala.  223,  10  South.  431;  Chambers  v.  Ker,  6 
Tex.  Civ.  App.  373,  24  S.  W.  1118;  Dentler  v.  O'Brien,  56  Ark.  49,  19  S.  W. 
Ill;  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W.  772;  Garner  v.  Cook,  30  Ind.  331; 
Oliver  v.  Houdlet,  13  Mass.  237,  7  Am.  Dec.  134;  Van  Bramer  v.  Cooper,  2 
Johns.  (N.  Y.)  279;  Alsworth  v.  Cordtz,  31  Miss.  32.  In  an  action,  for  instance, 
for  enticing  away  a  servant  from  plaintilFs  service,  the  defendant  cannot 
escape  liability  by  showing  that  the  servant  was  an  infant,  and  was  there- 
fore not  bound  by  his  contract  with  the  plaintiff.  Keane  v.  Boycott,  supra. 
The  surety  on  a  bond  given  by  an  infant,  and  afterwards  disatfirmed  by  him, 
has  been  held  liable.    Kyger  v.  Sipe,  89  Va.  507,  16  S.  E.  627. 


§§  99-101)  WHO    MAY   AVOID    CONTRACT.  163 

held  that  his  guardian  cannot  avoid  his  contracts  for  him,  though  there 
is  some  dictum  to  the  contrary.^'*"  On  his  death,  however,  or  if  he  be- 
comes insane,  his  contracts  may  be  avoided  by  his  heirs, ^°^  his  personal 
representatives/"^  or  his  guardian  or  conservator.^"*  The  reason  of 
the  rule,  it  has  been  said,  extends  only  to  them  because  the  privilege 
is  conferred  for  his  sole  benefit.  While  living,  he  should  be  the  ex- 
clusive judge  of  that  benefit,  and  when  dead  those  alone  should  inter- 
fere who  legally  represent  him.  Could  his  contracts  be  avoided  by 
third  persons,  the  principle  would  operate,  not  for  his,  but  for  their, 
benefit ;  not  when  he  chose  to  avail  himself  of  his  privileges,  but  when 
strangers  elected  to  do  it.^°* 

The  other  party  to  the  contract,  not  being  himself  under  a  disa- 
bility to  contract,  cannot  avoid  it.  He  is  bound  if  the  infant  chooses 
to  hold  him  by  ratifying  the  contract  on  becoming  of  age.^"®  A  court 
of  equity,  however,  will  not  grant  an  infant  specific  performance  of  a 
contract  by  the  adult.^°^  Of  course,  those  contracts  which  are  held 
void,  and  not  merely  voidable,  at  the  infant's  option,  are  of  no  effect 
at  all,  and  can  bind  neither  party. 

100  See  Oliver  v.  Houdlet,  13  Mass.  240,  7  Am.  Dec.  134;  Irvine's  Heirs  v. 
Crockett,  4  Bibb  (Ky.)  437;  Cliandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec. 
117;   Cf.  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626.    Post,  p.  165. 

101  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315;  Harvey  v.  Briggs,  68 
Miss.  60,  8  South.  274;  Searcy  v.  Hunter,  81  Tex.  644,  17  S.  W.  372,  26  Am. 
St.  Rep.  837;  Veal  v.  Fortson,  57  Tex.  487;  Ferguson  v.  Bell's  Adm'r,  17  Mo. 
351;  Levering  v.  Heighe,  2  Md.  Ch.  81,  88;  Breckem-idge's  Heirs  v.  Ormsby, 
1  J.  J.  Marsh.  (Ky.)  248,  19  Am.  Dec.  71. 

102  Parsons  v.  Hill,  8  Mo.  135;  Hastings  v.  Dollarhide,  24  Cal.  207;  Person 
V.  Chase,  37  Vt.  650,  88  Am.  Dec.  630;  Jefford  v.  Ringgold,  6  Ala.  547;  Hussey 
V.  Jewett,  9  Mass.  100;  Smith  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28;  Brecken- 
ridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  248,  19  Am.  Dec.  71. 

103  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117. 

104  Though  ordinarily  a  plea  of  infancy  is  personal,  a  beneficiary  in  a  pol- 
icy on  the  infant's  life  may  plead  it  in  answer  to  the  company's  defense  of 
false  warranties  in  the  application;  for  otherwise  an  infant's  contract  of  in- 
surance would  be  in  effect  binding  on  him  dm-ing  his  minority.  O'Rourke  v. 
Insurance  Co.,  23  R.  I.  457,  50  Atl.  834,  57  L.  R.  A.  496,  91  Am.  St.  Rep.  643. 

10  5  HOLT  V.  WARD  CLARENCIEUX,  2  Strange,  937;  Thompson  v.  Hamil- 
ton. 12  Pick.  (Mass.)  425,  23  Am.  Dec.  619;  Hunt  v.  Peake,  5  Cow.  (N.  Y.)  475,. 
15  Am.  Dec.  475;    Field  v.  HeiTick,  101  111.  110. 

100  Flight  V.  Bolland,  4  Russ.  298. 


L64  CAPACITY   OF   rAr.TlES.  (Ck  G 


SAME— TIME  OF  AVOIDANCE.  f '  ^ 

102.  Executory  contracts,  or  executed  contracts  relating  to  personalty, 

may  be  avoided  by  an  infant  either  before  or  after  attaining 
bis  majority;  but  conveyances  of  land  cannot  be  disaffirmed 
during  minority,  tbougb  be  may  enter  and  take  the  profits. 

103.  As  a  rule,  mere  lapse  of  time  after  attaining  his  majority  'will 

not  bar  an  infant's  disafHriuance  of  his  executory  contract,  fout 
in  a  few  states  he  is  required  to  disaffirm  \pithin  a  reasonable 
time. 

104.  As  a  rule,  executed  contracts  must  be  disaffirmed  VTithin  a  reason- 

able time  after  attaining  majority;  but  in  some  states  it  is  held 
that  the  right  to  avoid  a  conveyance  of  land  is  not  barred  by 
acquiescence  for  any  period  short  of  that  prescribed  by  the  stat- 
ute of  limitations. 

An  infant's  executory  contract  may  be  avoided  by  him  at  any  time, 
either  before  or  after  attaining  his  majority,  by  refusing  to  perform 
it,  and  pleading  his  infancy  when  sued  for  breach  of  the  contract.^"'^ 

In  the  case  of  executed  contracts  a  distinction  is  made  between  con- 
tracts relating  to  his  lajid  and  those  relating  to  his  personalty.  A  deed 
of  land  executed  by  an  infant  cannot  be  dis_affirmed , duringF-44i6-  mi- 
Tigrity.  He  may  enter  on  the  land  and  take  the  profits  until  the  time 
arrives  when  he  has  the  legal  capacity  to  affirm  or  disaffirm  the  deed ; 
but  the  deed  is  not  rendered  void  by  the  entry.  It  may  still  be  affirmed 
after  he  reaches  his  majority.^"® 

The  rule,  however,  does  not  apply  to  a  sale  and  manual  delivery  of 
chattels  by  an  infant.  Such  a  contract  may  be  avoided  by  him  while 
he  is  still  an  infant.^"^     In  a  New  York  case  it  was  said:.    "The  gen- 

107  Reeves,  Dom.  Rel.  254;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am. 
Rep.  53;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  G64,  1  Am.  St.  Rep.  379.  Au  infant 
may  avoid  liis  contracts  for  personal  services  during  his  minority.  Vent  v. 
Osgood,  19  Pick.  (Mass.)  572;  Ray  v.  Haines,  52  111.  485;  Adams  v.  Beall,  G7 
Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  37;  Gaffney  v.  Haydeu,  110  Mass.  137,  14 
Am.  Rep.  580;  Vehue  v,  Pinkham,  60  Me.  142;  Whitmarsh  v.  Hall,  3  Denio 
(N.  Y.)  375. 

108  Welch  V.  Bunce,  83  Ind.  382;  Zouch  v.  Parsons,  3  Burrows,  1794;  Irvine 
V.  Irvine,  5  Minn.  61  (Gil.  44);  Hastings  v.  Dollarhide,  24  Cal.  195;  Bool  v. 
Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285;  McCormick  v.  Leggett,  53  X.  C. 
425;  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  Baker  v.  Kennett,  54  Mo.  88.  An 
infant,  however,  may,  liefore  attaining  his  majority,  yplead  infancy  in  a  suit 
to  foreclose  a  mortgage  on  land.    Schneider  v.  Staihr,  20  Mo.  269. 

100  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119, 
31  Am.  Dec.  285;  Zouch  v.  Parsons,  3  Burrows,  1794;  Adams  v.  Beall,  67  Md. 
53,  8  Atl.  664,  1  Am.  St.  Rep.  379;  Shipinan  v.  Ilortou,  17  Conn.  481;  Riley 
v.  Mallory,  .33  Conn.  207;  Willis  v.  Twambly,  13  Mtw^s.  204;  Carr  v.  Clough, 
26  N.  H.  280,  59  Am.  Dec.  345;  Chapin  v.  Shafer,  49  N.  Y.  407;  Towle  v, 
Dresser,  73  Me.  252;   Iloyt  v.  M'llkiHson,  57  Vt.  404;    Carpenter  v.  Carpenter, 


§§  102-1U4)  TIME    OF   AVOIDANCE.  165 

eral  rule  is  that  an  infant  cannot  avoid  his  contract,  executed  by  him- 
self, and  which  is  therefore  voidable  only,  while  he  is  within  age.  He 
lacks  legal  discretion  to  do  the  act  of  avoidance.  But  this  rule  must  be 
taken  with  the  distinction  that  the  delay  shall  not  work  unavoidable 
prejudice  to  the  infant,  or  the  object  of  his  privilege,  which  is  intended 
for  his  protection,  would  not  be  answered.  When  applied  to  a  sale 
of  his  property,  it  njust  be  his  land ;  a  case  in  which  he  may  enter  and 
receive  the  profits  until  the  power  of  finally  avoiding  shall  arrive. 
*  *  *  Should  the  law  extend  the  same  doctrine  to  sales  of  his  per- 
sonal estate,  it  would  evidently  expose  him  to  great  loss  in  many  cases, 
and  we  shall  act  up  to  the  principle  of  protection  much  more  effectually 
by  allowing'him  to  rescind"  while  under  age,  though  he  may  sometimes 
misjudge,  and  avoid  a  contract  which  is  for  his  own  benefit.  The  true 
rule,  then,  appears  to  me  to  be  that,  where  the  infant  can  enter  and 
hold  the  subject  of  the  sale  till  his  legal  age,  he  shall  be  incapable  of 
avoiding  till  that  time ;  jDut  where  the  possession  is  changed,  and  there 
is  no  l;;ga]  means  to  regain  and  hold  it  in  the  meantime,  the  infant,  or 
his  guardian  for  him,  has  the  right  to  exercise  the  power  of  rescission 
immediatelv."  "<* 

The  rule  is  very  general,  almost  universal,  that  an  infant  may  avoid 
any  contract  in  relation  to  his  personal  property  before  he  is  of  age.^^^ 
Seme  courts  have  held  that  he  cannot  disaffirm  a  partnership  agree- 
ment during  his  minority,  so  as  to  recover  what  he  has  put  into  the 
firm,  but  must  wait  until  he  attains  his  majority. ^^^  Other  courts  hold 
the  contrary,  on  the  ground  that  it  is  a  contract  in  relation  to  his  per- 
sonalty, and  that  al!  contracts  of  an  infant  in  relation  to  personal  prop- 
erty may  be  disaffirmed  during  his  minority. ^^^ 

As  to  whether  a  contract  must  be  disaffirmed  by  an  infant  within  a 
reasonable  time  afte"  he  attains  his  majority,  the  authorities  are  con- 
flicting. In  the  case  of  executor}-  contracts  requiring  ratification  to 
render  them  binding,  the  right  to  avoid  them  cannot  bt  barred  by  mere 

45  Ind.  U2;  Cogley  v.  Cushman  16  Jlinn.  397  (Gil.  354);  Price  v.  Furman, 
27  Vt.  268,  65  Am.  Dec.  194. 

110  Staff orcT  v.  Roof,  supra 

111  See  Shirk  v.  Shultz,  113  In^.  571,  15  N.  E.  12  (collecting  cases);  Rice  v. 
Boyer,  108  Lnd  472,  9  N.  E.  420,  58  Am.  Rep.  53;  Hoyt  v.  Willdnson,  57  Vt. 
404;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Willis  v.  Twambly,  13 
Mass.  204;  Stafford  v.  Roof,  9  Cow.  (X.  Y.)  628;  Bool  v.  Mix,  17  Wend.  (N.  Y.) 
119,  31  Am.  Dec.  285;  Petrie  v.  Williams.  OS  Hun,  589,  23  N.  Y.  Supp.  237; 
Cogley  V.  Cushman,  16  Minn.  397  (Gil.  354).  Contra:  Lansing  v.  Railroad 
Co.,  126  Mich.  663,  86  N.  W.  147,  86  Am.  St.  Rep.  567.  And  see  Pippen  v.  In- 
surance Co.,  130  N.  C.  23,  40  S.  E.  822,  57  L.  R.  A.  505. 

112  Dunton  v.  Brown,  31  Mich.  182;  Armitage  v.  Widoe,  36  Mich.  130;  Bush 
V.  Linthieum,  59  Md.  344  (but  see  Adiuns  v.  Beall,  67  Md.  53,  8  Atl.  6G4,  1 
Am.  St.  Rep.  37). 

113  Shirk  V.  Shultz,  113  Ind.  571,  15  N.  E.  12  (collecting  cases);  Adams  v. 
Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  37. 


166  CAPACITY  OF  PARTIES.  (Ch.  6 

silence,  without  more.  It  may  be  otherwise  where  the  circumstances 
are  such  as  to  make  it  the  infant's  duty  to  speak,  for  in  such  a  case 
silence  or  acquiescence  may  amount  to  a  ratification.^^* 

In  the  case  of  conveyances  of  land,  sales  and  delivery  of  chattels,  and 
the  like,  many  courts  hold  that  the  infant  must  disaffirm  the  contract 
within  a  reasonable  time  after  he  attains  his  majority,  or  be  held  to 
have  ratified  it,  and  to  be  barred  from  avoiding  it.^^"  Many  courts, 
however,  have  held  that  a  conveyance  of  land  by  an  infant  need  not 
be  disaffirmed  within  any  period  short  of  that  prescribed  by  the  statute 
of  limitations,  and  that  acquiescence  for  any  shorter  time  will  not  bar 
his  right  to  avoid  it.^^® 

It  is  provided  by  statute  in  some  states  that  an  infant  is  bound  on 
all  his  contracts  unless  he  disaffirms  them  within  a  reasonable  time.^^^ 

l^  '^    '  *  SAME— WHAT  AMOUNTS  TO  A  RATIFICATION. 

105.  In  some  jurisdictions,  by  statute,  ratification  of  a  contract  by  an 

infant  must,  snbject  to  specified  exceptions,  be  in  ^nrriting, 
signed  by  bim  or  bis  agent. 

106.  In  tbe  absence  of  sncb  a  provision,  ratification  may  be  by  an  ex- 

press neixr  promise,  orally  or  in  xcrriting;  or  it  may  be  implied 
from  declarations  or  conduct  clearly  sbo\ving  an  intention  to  be 
bound. 

107.  Tbe  promise  must  be  made  or  tbe  acts  done  by  tbe  infant  under- 

standingly,  but  tbe  cases  are  in  conflict  as  to  w^betber  knoxrl- 
edge  of  tbe  legal  rigbt  to  avoid  tbe  contract  is  necessary. 

114  Ante,  p.  162 ;  post,  p.  169. 

115  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617;  Goodnow  v. 
Empire  Lumber  Co.,  31  Minn.  468,  18  N.  W.  283,  47  Am.  Rep.  798  (collecting 
tlie  cases  pro  and  con);  Bigelow  v.  Kinney,  3  Vt  353,  21  Am.  Dec.  589; 
Dolpti  V.  Hand,  156  Pa.  91,  27  Atl.  114,  36  Am.  St.  Rep.  25;  Amey  v.  Cockey, 
73  Md.  297,  20  Atl.  1071;  Ihley  v.  Padgett,  27  S.  C.  300,  3  S.  E.  468;  Sanders 
V.  Bennett  (Ky.)  1  S.  W.  436;  Scott  v.  Buchanan,  11  Humph.  (Tenn.)  468; 
Aldrich  v.  Funk,  48  Hun,  367,  1  N.  Y.  Supp.  543;  Ward  v.  Laverty,  19  Neb.  429, 
27  N.  W.  393 ;  Thormaehlen  v.  Kaeppel,  86  Wis.  378,  56  N.  W.  1089 ;  Kline  v. 
Beebe,  6  Conn.  506.  An  infant's  delay  of  less  than  six  months  after  majority 
in  avoiding  a  deed  of  land,  with  knowledge  that  purchasers  from  his  gran- 
tee are  making  improvements,  does  not  estop  him.  Ruudle  v.  Spencer,  67 
Mich.  189,  34  N.  W.  548. 

ii«  Drake's  Lessees  v.  Ramsay,  5  Ohio,  251;  Prout  v.  Wiley,  28  Mich.  164; 
Lacy  V.  Pixler,  120  Mo.  383,  25  S.  W.  206;  Sims  v.  Everhardt,  102  U.  S.  300,  26 
L.  Ed.  87;  Wells  v.  Seixas  (C.  C.)  24  Fed.  82;  Richardson  v.  Pate,  93  Ind. 
482,  47  Am.  Rep.  374;  Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233;  Eagan 
V.  Scully,  29  App.  Div.  617,  51  N.  Y.  Supp.  680,  affirmed  173  N.  Y.  581,  65  N. 
E.  1116;   Shipp  v.  McKee,  80  Miss.  741,  32  South.  281,  92  Am.  St  Rep.  616. 

117  Leacox  v.  Griffith,  76  Iowa,  89,  40  N.  W.  109;  Mehlhop  v.  Rae,  90  Iowa, 
30,  57  N.  W.  650;  Hegler  v.  Faulkner,  153  U.  S.  109,  14  Sup.  Ct.  779,  38  L. 
Ed.  653  (Tinder  Nebraska  statute);  Johnson  t.  Storie,  32  Neb.  610,  49  N.  W. 
371. 


§§  105-107)  WHAT  AMOUNTS  TO  A   RATIFICATION.  167 

In  some  jurisdictions  it  is  declared  by  statute  that,  with  specified  ex- 
ceptions, no  action  shall  be  maintained  on  any  contract  made  by  an  in- 
fant, unless  he,  or  some  person  lawfully  authorized,  ratified  it  in  writ- 
ing after  he  attained  his  majority. ^^^  In  the  absence  of  such  a  pro- 
vision, ratification  may  either  be  by  an  express  new  promise,  made 
orally  or  in  writing,  or  it  may  be  implied  from  acts  or  declarations 
clearly  showing  an  intention  to  recognize  the  contract,  and  to  be  bound 
by  it.  The  new  promise,  whether  in  writing  or  oral,  or  evidenced  by 
conduct,  must  be  clear  and  unequivocal,  and  must  show  an  intention 
to  be  bound. ^^® 

A  mere  acknowledgment  of  the  contract,  without  a  promise  to  be 
bound,  express  or  implied,  is  not  sufficient.^ ^°  Where  there  is  a  new 
promise,  it  must  be  made  to  the  other  party  or  his  agent  ;^^^  and  if 
it  is  not  absolute,  but  conditional — as,  for  instance,  where  it  is  a  promise 
to  pay  or  otherwise  perform  when  able — the  condition  must  be  ful- 
filled before  any  liability  attaches. ^^* 

It  has  frequently  been  held  that  to  render  an  act  or  promise  binding 
as  a  ratification  it  must  be  performed  or  made  with  knowledge  that 
there  was  in  law  no  liability  on  the  original  contract.^^'  There  are 
many  cases,  however,  which  hold  that  knowledge  of  the  law  is  not 
necessary,  or,  rather,  must  be  presumed.^^* 

There  need  be  no  fresh  consideration  for  the  new  promise,  for,  as 
we  have  seen,  this  is  one  of  the  cases  in  which  a  past  censideration  is 
suflicient.^*' 

118  Bird  V.  Swain,  79  Me.  529,  11  Atl.  421. 

118  Whitney  v.  Dutch,  14  Mass.,  at  page  460.  7  Am.  Dec.  229;  Carrell  v. 
Potter,  23  Mich.  379.    And  see  notes  126-131,  infra. 

120  Ford  V.  Phillips,  1  Pick.  (Mass.)  202;  Kendrick  v.  Neisz,  17  Colo.  506,  30 
Pac.  245;  Hale  v.  Gerrish,  8  N.  H.  374. 

121  Goodsell  V.  Myers,  3  Wend.  (N.  Y.)  479;  Bigelow  v.  Grannis,  2  HHI  (N. 
Y.)  120. 

122  Everson  v.  Carpenter,  17  Wend.  (N.  Y.)  419;  Kendi-ick  v.  Neisz,  17  Colo. 
506,  30  Pac.  245;  Thompson  v.  Lay,  4  Pick.  (Mass.)  48,  16  Am.  Dec.  325; 
Proctor  V.  Sears,  4  Allen  (Mass.)  95. 

128  Hamer  v.  Killing,  5  Esp.  103;  Curtin  v.  Patton,  11  Serg.  &  R.  (Pa.^ 
305;  Thing  v.  Libbey,  16  Me.  55;  Trader  v.  Lowe,  45  Md.  1;  Smith  v.  Mayo,  '^ 
Mass.  62.  6  Am.  Dec.  28;  Ford  v.  Phillips,  1  Picli.  (Mass.)  202;  Reed  v. 
Boshears,  4  Sneed  (Tenn.)  118;  NoiTis  v.  Vance,  3  Rich.  Law  (S.  C.)  164;  Bur- 
dett  V.  Williams  (D.  C.)  30  Fed.  697 ;  Bresee  v.  Stanly,  119  N.  C.  278,  25  S.  E. 
970.  No  ratification,  if  adult  is  ignorant  that  he  was  an  infant  when  he  made 
the  contract  Ridgeway  v.  Herbert,  150  Mo.  606,  51  S.  W.  1040,  73  Am.  St 
Rep.  464. 

124  Morse  v.  Wheeler,  4  Allen  (Mass.)  570;  Taft  v.  Sergeant,  18  Barb.  (N.  Y.) 
321 ;  Anderson  v.  Soward,  40  Ohio  St.  325,  48  Am.  Rep.  687 :  American  Mort- 
gage Co.  V.  Wright  101  Ala.  658,  14  South.  399 ;  Clark  v.  Van  Court,  100  Ind. 
113,  50  Am.  Rep.  774 ;  Ring  v.  Jamison,  66  Mo.  424 ;  Bestor  y.  Hickey,  71  Conn, 
181,  41  Atl.  555. 

126  Ante,  p.  140. 


168  CAPACITY  OF  PARTIES.  (Ch.  G 

Implied  Ratification. 

Unless  a  statute  so  requires,  an  express  promise  in  terms  is  not 
necessary  in  order  to  constitute  ratification  of  an  obligation  incurred 
during-  infancy.  "Where  the  declarations  or  acts  of  the  individual 
after  becoming  of  age,"  said  the  Vermont  court,  "fairly  and  justly  lead 
to  the  inference  that  he  intended  to  and  did  recognize  and  adopt  as 
binding  an  agreement  executory  on  his  part,  made  during  infancy,  and 
intended  to  pay  the  debt  then  incurred,  we  think  it  is  sufficient  to  con- 
stitute ratification,  provided  the  declarations  were  freely  and  under- 
standingly  made,  or  the  acts  in  like  manner  performed,  and  with  knowl- 
edge that  he  was  not  legally  liable."  ^*® 

The  courts  go  much  further  than  this,  and  hold  substantially  that 
any  intelligent  conduct  by  a  person,  after  attaining  his  majority,  in- 
consistent with  the  nonexistence  of  a  contract,  executory  or  executed, 
will,  as  a  rule,  amount  to  an  affirmance  of  the  contract.^^^  If,  for  in- 
stance, an  infant  takes  a  lease,  and  after  becoming  of  age  recognizes  it 
by  occupying  under  it,  or  if,  having  given  a  lease,  he  accepts  rent  after 
becoming  of  age,  his  conduct  amounts  to  a  ratification.^ ^^  So,  also, 
a  purchase  of  land  or  chattels  by  an  infant  is  ratified  if  he  retains  and 
uses  the  property  for  an  unreasonable  time  after  attaining  his  ma- 
jority, or  if  he  sells  it  to  a  third  person,  or  otherwise  disposes  of  it.^^* 

120  Hatch  V.  Hatch's  Estate,  60  Vt.  160,  13  Atl.  791.  And  see  Kendrick  v. 
Neisz,  17  Colo.  506,  30  Pac.  245;  Baker  v.  Kennett,  54  Mo.  88;  Wheaton  v. 
East,  5  Yerg.  (Tenn.)  41,  26  Am.  Dec.  251;  Ernmous  v.  Murray,  16  N.  H.  3S5; 
Drake  v.  Wise,  36  Iowa,  476;  Hale  v.  Gerrish,  8  N.  H.  374;  Middleton  v.  Hoge, 
5  Bush  (Ky.)  478  (colIectiDg  cases);  Barlow  v.  Robinson,  174  111.  317,  51  N.  E. 
1045.     See  Ewell,  Lead.  Cas.  173-180. 

12T  Hem-y  v.  Root,  33  N.  Y.  526  (collecting  cases).  Where  an  infant  buys 
land,  and  gives  a  mortgage  to  secure  the  purchase  money,  a  sale  and  con- 
veyance of  the  land  after  h©  becomes  of  age  is  a  ratification  of  the  mort- 
gage. Uecker  t.  Koehn,  21  Neb.  559,  32  N.  W.  583,  59  Am.  Rep.  849.  And  see 
Callis  V.  Day,  38  Wis.  643.  Acceptance  of  part  of  the  proceeds  of  a  sale  un- 
der a  deed  of  trust  given  while  an  infant.  Darraugh  v.  Blackford,  84  Va.  509, 
5  S.  E.  542.  Taking  releases  of  part  of  premises  mortgaged  during  infancy, 
and  acquiescence  for  two  years.  Wilson  v.  Darragh,  55  Hun,  605,  7  N.  Y. 
Supp.  810. 

128  Ashfleld  T.  Ashfleld,  W.  Jones,  157;  Paramour  v.  Yardley,  Plowd.  546. 

129  Henry  v.  Root,  33  N.  Y.  526;  Lawson  v.  Lovejoy,  8  Me.  405,  23  Am.  Dec. 
526;  Boyden  v.  Boyden,  9  Mete.  (Mass.)  519;  Robbins  v.  Eaton,  10  N.  H.  561; 
Hubbard  v.  Cummings,  1  Me.  11;  Boody  v.  McKenney,  23  Me.  517;  Ellis  v. 
Alford,  64  Miss.  8,  1  South.  155;  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N. 
E.  538;  Cheshire  v.  Barrett,  4  McCord  (S.  C.)  241,  17  Am.  Dec.  735;  Deason 
V.  Boyd,  1  Dana  (Ky.)  45;  Shropshire  v.  Burns,  46  Ala.  108;  Aldrich  v. 
Grimes,  10  N.  H.  194;  Dana  v.  Coombs,  6  Grecnl.  (Me.)  89,  19  Am.  Dec.  194; 
Armfield  v.  Tate,  29  N.  C.  258;  Callis  v.  Day,  38  Wis.  643;  Hilton  v.  Shepherd, 
92  Me.  160,  42  Atl.  387.  This  is  expressly  declared  by  statute  in  some  states. 
See  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312.  Retaining  property  after 
tendering  it  on  disaffirmance,  and  on  the  other's  refusal  to  receive  it,  is  not  a 
ratification.    House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189. 


§§  105-107)  WHAT  AMOUNTS   TO  A  RATIFICATION.  169 

The  receipt  of,  or  a  suit  to  recover,  the  purchase  money  of  property 
sold  by  him,  or  suit  to  enforce  any  other  kind  of  contract,  would 
amount  to  a  ratification  of  the  contract.^^*^  Generally  speaking,  the  act 
relied  upon  as  a  ratification  must  show  an  intention  to  affirm  the  con- 
tract; but  the  decisions  are  not  in  accord  as  to  what  acts  are  sufficient 
to  show  such  an  intention.  Disposing  of  the  property  received  under 
the  contract,  and  the  other  acts  above  mentioned,  would  clearly  show 
such  intention ;  but  where  an  infant  has  executed  a  conveyance,  a  mere 
offer,  after  attaining  his  majority,  to  execute  a  confirmatory  deed  if  the 
other  party  will  pay  the  balance  of  the  purchase  money,  which  offer  is 
refused,  clearly  could  not  be  regarded  as  a  ratification  of  the  sale  and 
convejance.^^^ 

Mere  silence  or  acquiescence  after  becoming  of  age,  without  more, 
does  nor,  as  a  rule,  amount  to  a  ratification.^'*  It  is  otherwise  where 
the  contract  is  one  which  requires  disaffirmance,  and  there  is  a  failure 
to  disaffirm  for  an  unreasonable  time,  under  such  circumstances  as  to 
lead  others  to  act  to  their  prejudice.^ '^ 

And  see  Scott  v.  Scott,  29  S.  C.  414,  7  S.  E.  811.  The  retention  by  a  person, 
after  becoming  of  age,  of  material  furnished  him  during  his  minority  in  the 
construction  of  his  houss,  is  not  a  ratification  of  his  purchase  of  the  material, 
for  he  cannot  return  it.  Bloomer  v.  Nolan,  36  Neb.  51,  53  N.  W,  1039,  38  Am. 
St.  Eep.  690. 

180  Morrill  v.  Aden,  19  Vt.  505;  Fe:gt:son  v.  Bell's  Adm'r,  17  Mo.  347;  Purs- 
ley  V.  Hays,  17  Iowa,  310.  Where  an  infant  takes  a  deed  and  gives  back  a 
purchase-money  mortgage,  and  the  property  is  sold  under  the  mortgage,  the 
infant  after  his  majority,  by  bringing  ejectment  against  the  purchaser,  not 
only  affirms  the  deed,  but  the  mortgage.  Kennedy  v.  Baker,  159  Pa.  146,  28 
Atl.  252. 

lii  Craig  V.  Van  Bebbei',  100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569. 
WheX'i  a  note  by  an  infant  remains  In  part  unpaid,  mere  acknowledgment  of 
the  debt,  or  payment  of  interest  or  part  of  principal,  after  becoming  of  age. 
Is  not  a  binding  affirmance.  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245. 
Contra,  American  Mortgage  Co.  v.  Wright,  101  Ala.  658.  14  South.  399.  So, 
where  land  has  been  purchased,  and  installment  notes  given  by  an  infant, 
payment  of  some  after  becoming  of  age  is  not  of  itself  a  ratification.  Rapid 
Transit  Land  Co.  v.  Sanford  (Tex.  Civ.  App.)  24  S.  W.  587.  The  recital  in  a 
mortgage  executed  after  attaining  majority,  that  It  is  subject  to  a  mortgage 
executed  during  Infancy,  is  a  ratiflcation  of  the  prior  mortgage.  Ward  v.  An- 
derson, 111  N.  0.  115,  15  S.  E.  933. 

132  Durfee  v.  Abbott,  61  Mich.  471,  68  N.  W.  521;  Irvine  v.  Irvine,  9  Wall. 
618,  19  L.  Ed.  800;  Tyler  v.  Fleming,  68  Mich.  185,  35  N.  W.  902,  13  Am.  St. 
Eep.  336;  Hill  v.  Nelms,  86  Ala.  442,  5  South.  796.  But  see  Delano  v.  Blake, 
11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617;    ante,  p.  165. 

138  Langdon  v.  Clayson.  75  Mich.  204,  42  N.  W.  805;  Lacy  v.  Pixler.  120 
Mo.  383,  25  S.  W.  206;  Dolph  v.  Hand,  156  Pa.  91,  27  Atl.  114,  36  Am.  St 
Rep.  25;  Wheaton  v.  East,  5  Yerg.  41,  62.  26  Am.  Dec.  258;  Hartman  r. 
Kendall,  4  Ind.  403;   Wallace's  Lessee  v.  Lewis,  4  Har.  (Del.)  80. 


CAPACITY  OF  PARTIES.  (Oh.  6 


.4^ 


SAME— WHAT  AMOUNTS  TO  DISAFFIRMANCE. 


108.  A  contract  is  disaffirmed  by  any  conduct  T^hich.  is  inconsistent 
with  the  existence  of  the  contract,  and  shovtrs  an  intention  not 
to  be  bound  by  it. 

Disaffirmance,  like  ratification,  may  be  implied,  and  it  will  generally 
be  implied  from  conduct  clearly  inconsistent  with  the  existence  of  the 
contract.^^*  Where,  for  instance,  a  person  who  has  sold  and  conveyed 
or  mortgaged  land  or  goods  while  an  infant,  sells,  leases,  or  mortgages 
the  same  to  another  after  becoming  of  age,  this  is  a  disaffirmance  of 
his  contract.^^°  An  action  by  a  person,  after  becoming  of  age,  to  re- 
cover goods  or  land  sold  by  him  during  his  minority,  is  a  disaffirmance 
of  the  sale;  ^^*  and  a  contract  is  disaffirmed  by  merely  pleading  infancy 
when  suit  is  brought  against  him  to  enforce  it. 

At  one  time  disaffirmance  of  a  deed  of  land  was  required  to  be  by 
some  act  as  high  and  solemn  as  the  deed ;  but,  according  to  the  weight 
of  authority,  this  solemnity  is  no  longer  necessary,  and  a  deed  may  be 
effectually  avoided  by  any  acts  or  declarations  disclosing  an  unequivo- 
cal intent  to  repudiate  it^*'' 

134  Pyne  v.  Wood,  145  Mass.  558,  14  N.  E.  775;  Vent  v.  Osgood,  19  Pick. 
(Mass.)  572;  Whitmarsh  v.  Hall,  3  Deuio  (N.  Y.)  375;  Dallas  v.  HoUingsworth, 
3  Ind.  537. 

135  Tucker  v,  Moreland,  10  Pet.  58,  9  L.  Ed.  345;  Mustard  v,  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Vallandingliam  v.  Johnson,  85  Ky. 
288,  3  S.  W.  173;  Corbett  v.  Spencer,  63  Mlcb.  731,  30  N.  W.  385;  Haynes  v. 
Bennett,  53  Mich.  15,  18  N.  W,  539;  Dawson  v.  Helmes.  30  Minn.  107,  14  N. 
W.  462;  Chapin  v,  Shafer,  49  N.  Y.  407;  Peterson  v.  Laik,  24  Mo.  541,  69 
Am.  Dec.  441;  Cresinger  v.  Welch's  Lessee,  15  Ohio,  156,  45  Am.  Dec.  565; 
Pitcher  v.  Layrock,  7  Ind.  398;  McGan  v.  Marshall,  7  Humph.  (Tenn.)  121; 
Ridgeway  v.  Herbert,  150  Mo.  606,  51  S.  W.  1040,  73  Am.  St.  Rep.  464.  In 
some  jurisdictions  a  person  is  not  allowed  to  convey  land  which  is  in  the  ad- 
verse possession  of  another.  Here,  therefore,  an  infant  cannot  avoid  his  deed 
of  land  by  a  second  deed,  executed  while  his  first  grantee  or  another  is  in  the 
adverse  possession  of  the  land.  He  must  first  make  an  entry.  Harrison  v. 
Adcock,  8  Ga.  68.    See  Bool  v.  Mix,  17  Wend.  (N.  Y.)  133,  31  Am.  Dec.  285. 

136  Clark  V.  Tate,  7  Mont.  171,  14  Pac.  761;  Craig  v.  Van  Bebber,  100  Mo. 
584,  13  S.  W.  906,  18  Am.  St.  Rep.  569;  Philips  v.  Green,  3  A.  K.  Marsh.  (Ivy.) 
7,  13  Am.  Dec.  124;  Stotts  v.  Leonhard,  40  Mo.  App.  336;  Scott  v.  Buchanan, 
11  Humph.  (Tenn.)  469;  Hughes  v.  Watson,  10  Ohio,  134.  Where,  however, 
the  action  is  based  on  the  assumption  that  defendant  is  wrongfully  in  posses- 
sion, as  in  the  case  of  ejectment,  the  weight  of  authority  seems  to  require 
that  there  shall  have  been  some  previous  act  of  disaffirmance  on  the  part  of 
the  infant,  for  until  disaffirmance  defendant  is  rightfully  in  possession.  See 
Law  V.  Long,  41  Ind.  586;  McClanahan  v.  Williams,  136  Ind.  30,  35  N.  E.  897; 
Bool  v.  Mix,  17  Wend.  (N.  Y.)  135,  31  Am.  Dec.  285;  Clawson  v.  Doe,  5  Blackf. 
(Ind.)  300;   Wallace's  Lessee  v.  Lewis,  4  Har.  (Del.)  75. 

13T  McCarty  v.  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136.  And 
Bee  note    135,  supra. 


§g  109-111)  KETURN    OF    CONSIDERATION.  171 


SAME— EXTENT  OF  RATIFICATION  OR  DISAFFIRMANCE. 

109.  The  ratification  or  disaffirmance  mnst  be  in  toto.      The  contract 

cannot  be  ratified  or  disaffirmed  in  part  only. 

The  disaffirmance  or  ratification  must  go  to  the  whole  contract.  An 
infant  cannot  ratify  a  part  which  he  deems  for  his  benefit,  and  repudi- 
ate the  rest/^®  He  cannot,  for  instance,  ratify  a  lease  to  himself,  and 
avoid  a  covenant  in  it  to  pay  rent ;  nor  can  he  hold  lands  conveyed  to 
him  in  exchange,  and  avoid  the  transfer  of  those  with  which  he  part- 
ed; ^^^  nor  can  he  hold  land  conveyed  to  him,  and  repudiate  a  mort- 
gage given  at  the  time  as  part  of  the  same  transaction  to  secure  the 
purchase  money. ^*° 

As  a  rule,  a  person  cannot  retain  property  purchased  by  him  during 
infancy,  and  repudiate  the  contract  under  which  he  received  it;  nor 
can  he  disaffirm  a  sale  by  him,  and  retain  the  consideration  received; 
but  as  to  this  there  is  much  conflict,  and  we  must  go  into  the  subject 
at  some  length. 

SAME— RETURN  OF  CONSIDERATION. 

110.  An  infant  may  disaffirm  his  executory  contract  \17ithont  first  re- 

turning the  consideration  he  has  received;  but  after  disaffirm- 
ance he  must  return  the  consideration,   if  he  has  it. 

111.  If  the  contract  has  been  executed  by  him,  he  cannot  avoid  it,  and 

recover  T^hat  he  has  paid,  or  for  ^vhat  he  has  done,  without  re- 
turning the  consideration  if  he  has  it;  but,  by  the  ^veight  of 
authority,  if  he  has  squandered  or  other^vise  disposed  of  it  dur- 
ing his  minority,  it  is  otherwise. 

EXCEPTIONS — (a)  Though  the  infant  has  the  consideration,  he  may 
effectually  disaffirm  his  executed  contract  without  its  return 
as  a  condition  precedent,  if  he  does  not  affirmatively  seek  re- 
lief; as,  for  instance,  w^here  he  disaffirms  his  conveyance  of 
land  by  conveying  to  another. 

Qt)  Some  courts  hold  that  an  infant  cannot  recover  \ehat  he  has 
paid,  or  for  w^hat  he  has  done,  under  a  contract  by  ivhich  he  has 
received  a  substantial  benefit,  unless  he  can  and  does  place  the 
other  party  in  statu  quo.  This  probably  does  not  apply  to  his 
conveyances  of  land. 

188  Badger  v.  Pbinney,  15  Mass.  359,  8  Am.  Dec.  105;  Bigelow  v.  Kinney, 
3  Vt.  353,  21  Am.  Dec.  589;  LK3wry  v.  Drake's  Heirs,  1  Dana  (Ky.)  46.  Cf. 
O'Rourke  v.  Insurance  Co.,  23  E.  I.  457,  50  All.  834,  57  L.  R.  A.  496,  91  Am. 
SL  Rep.  643. 

139  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N.  E.  538. 

140  Hubbard  v.  Cummings,  1  Greenl.  11;  Uecker  v.  Koebn,  21  Neb.  559,  32 
N.  W.  583.  59  Am.  Rep.  849;  Bigelow  v.  Kinney,  3  Vt  353,  21  Am.  Dec.  589: 
Heath  v.  West,  28  N.  H.  108;  Young  v.  McKee,  13  Mich.  556;  Skinner  v. 
Maxwell,  66  N.  C.  45;    Cogley  v.  Cushuian,  16  Minn.  402  (Gil.  354);    Callis  v. 


172  CAPACITY   OF  PARTIES,  (Cb.  6 

As  we  have  just  stated,  when  a  person  avoids  a  contract  made  by 
him  during  his  minority,  he  must,  as  a  rule,  return  the  consideration 
he  has  received.^*^  As  to  whether  or  not  he  must  do  so  as  a  condition 
precedent  to  disaffirmance,  or  whether  the  other  party  must  be  left  to 
his  action  to  recover  the  consideration  after  disaffirmance,  and_as  tq^ 
whether  the  consideration  must  be  returned  where  it  has  been  wasted 
or  otherwise  disposed  of,  the  decisions  are  conflicting, 

(a)  Where  the  contract  is  executory  on  the  part  of  the  infant,  and 
he  has  not  ratified  it  by  his  conduct,  as  explained  above,^*^  it  cannot, 
according  to  the  weight  of  authority,  be  enforced  against  him,  even 
though  he  retains  the  consideration  received  by  him  in  kind.  He  need 
not  return  the  consideration  as  a  condition  precedent  to  repudiating 
the  contract  and  pleading  his  infancy  in  an  action  brought  against  him 
to  enforce  it.^**  When  he  repudiates  his  contract,  however,  he  no 
longer  has  any  right  to  the  consideration  he  has  received,  and  at  least, 
if  he  has  it,  the  other  party  may  maintain  an  action  to  recover  it.^** 
According  to  the  weight  of  authority,  if  he  has  disposed  of  the  con- 
sideration so  that  he  cannot  return  it  in  kind,  he  cannot  be  held  liable 
for  it.  The  adult  is  remediless.^*"  It  must  be  remembered  that  re- 
taining the  consideration  may  amount  to  a  ratification. 

(b)  Where  the  contract  is  executed  on  the  part  of  the  infant,  and  he 
has  the  consideration  received  by  him  in  kind,  many  cases  hold  that 
he  cannot  repudiate  the  contract,  and  recover  what  he  has  parted  with, 
unless  he  returns, or  offers  to  return,  the  consideration.^*"     Many  cases, 

Day,  38  Wis.  643 ;  Ready  v.  Pinkham,  181  Mass.  351,  G3  N.  E.  887.  Cf.  Not- 
tingham, etc.,  Soc.  V.  Thurston,  19  L.  T.  R.  54  (H.  L.). 

1*1  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Bigelow  v.  Kinney, 
3  Vt.  353,  21  Am.  Dec.  5S9;  Wilhelm  v.  Hardman,  13  Md.  140;  Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Combs  v.  Hawes 
(Cal.)  8  Pac.  597  (statutoi-y) ;  Kitchen  v.  Lee,  11  Paige  (N.  Y.)  107,  42  Am.  Dec. 
101;   Bartlett  v.  Cowles,  15  Gray  (Mass.)  446. 

1*2  Ante,  p.  168. 

1*8  Craighead  v.  Wells.  21  Mo.  409:  Price  v.  Furman,  27  Vt.  268,  65  Am, 
Dec.  194.  See,  also,  Nichols  &  Shepard  Co.  v.  Snyder,  78  Minn.  502,  81  N.  W. 
516. 

1**  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Mustard  v.  Wohl- 
ford's Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209.  Where  an  infant  bought 
of  another  infant,  and  paid  the  price,  and  after  the  seller  had  spent  the  mon- 
ey the  l)uyer  disaffirmed  the  contract,  and  brought  action  to  recover  tlie  mon- 
ey paid  both  in  contract  and  in  tort,  it  was  held  that  the  defendant's  plea  of 
infancy  was  a  defense  to  the  count  in  contract,  and  that  there  was  no  deal- 
ing with  the  money  by  the  defendant  which  could  constitute  conversion. 
Drude  v.  Curtis,  183  Mass.  317,  67  N.  E.  317,  62  L.  R.  A.  755. 

14  5  See  Brawner  v.  Franklin,  4  Gill  (Md.)  470;  Boody  v.  McKenney,  23  Me. 
517,  525.    And  see  post,  p.  178. 

i««  See  Price  v.  Furman,  27  Vt  268,  65  Am.  Dec.  194;  Lemmon  v.  Beeman, 
45  Ohio  St.  505,  15  N.  E.  476;  Carr  v.  Clough,  26  N.  H.  280,  59  Am.  Dec.  345; 
Robinson  v.  Weeks,  50  Me.  102;    Johnson  v.  Insurance  Co.,  56  Minn.  365,  57 


§§  lOD-111)  RETURN   OF   CONSIDERATION.  173 

on  the  other  hand,  go  to  the  extent  of  saying  without  qualification  that 
the  return  of  the  consideration  in  such  a  case  is  not  a  condition  pre- 
cedent to  the  right  to  disaffirm  and  recover  what  has  been  parted  with ; 
although,  if  the  infant  still  retains  the  consideration,  the  adult  may  re- 
claim it,  or,  upon  demand  and  refusal,  recover  in  trover.^*''  That 
return  of  the  consideration  is  not  a  condition  to  disaffirmance,  where 
the  disaffirmance  by  the  infant  is  by  dealing  with  the  property  he  has 
parted  with  as  his  own,  and  where  he  is  not  seeking  the  aid  of  a  court 
to  recover  it,  is  everywhere  conceded ;  as  where,  having  sold  land  and 
received  the  purchase  money,  he  disaffirms  by  conveying  the  land  to  an- 
other. The  latter  deed  is  effectual  though  he  has  not  returned  the 
consideration  for  his  prior  deed.^*^ 

(c)  According  to  the  weight  of  authority,  an  infant,  on  attaining  his 
majority,  may  disaffirm  his  contract,  whether  it  is  executory  or  ex- 
ecuted, and  in  the  latter  case  may  recover  back  what  he  has  parted 
with,  or  for  what  he  has  done,  without  returning  or  offering  to  return 
the  consideration  received  by  him,  if,  during  his  minority,  he  has 
squandered  or  otherwise  disposed  of  it  so  that  he  cannot  return  it.^*® 


N.  W.  i.J4,  26  L.  R.  A.  187,  45  Ain.  St  Rep.  473 ;  Lane  v.  Iron  Co.,  101  Tenn. 
581,  48  R.  W.  /1094.    See,  also,  cases  cited  infra,  note  151. 

Money  Don-owed  by  an  infant  mortgagor  and  used  to  pay  off  prior  liens 
and  for  permanent  impi-ovements  will  be  regarded  in  equity  as  in  his  hands ; 
and  ill  a  suit  to  foreclose  the  mortgage  after  disaffirmance,  relief  may  be 
given  ty  a  stile  of  the  property  and  the  application  of  the  proceeds  in  such 
manner  uu  ix>  place  the  mortgagee  in  statu  quo,  provided  this  can  be  done 
wiiaou  depriving  the  mortgagor  of  an  interest  equivalent  to  that  vrhich  he 
had  in  the  property  at  the  time  the  mortgage  was  executed.  MacGreal  v. 
Taylo.  167  U.  S.  688,  1/  Sup.  Ct.  961.  42  L.  Ed.  326.  Cf.  Nottingham,  etc., 
Soeietj  v.  Thtrston,  19  L.  T.  R.  54  (H.  of  L.),  affirming  s.  c.  [1902]  1  Ch.  1 
(C.  A.),  reversing  s.  c.  [1901]  1  Ch.  88. 

I'^T  Chandltr  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Tucker  v.  More- 
land,  10  Pet.  58,  73,  9  L  Ed.  345 ;  Shaw  v.  Boyd,  5  Serg.  &  R.  (Pa.)  309,  9  Am. 
Dec.  368;  McCarty  v.  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136;, 
SWrk  V.  Siiultz,  113  Ind.  571,  15  N  E.  12;  Drude  v.  Curtis,  183  Mass.  317,  67 
N.  E.  317,  62  L   R.  A.  755 

i*«  Dawson  v.  Helmes,  Hi   Mmn.  107,  14  N.  W.  462. 

1*8  Chandler  a  .  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Price  v,  Furraan, 
27  Vt.  268,  65  Am.  Dec.  191;  Boody  v.  McKenney,  23  Me.  517;  Lemmon  v. 
Eceman,  4f  Ohio  St.  505,  15  N.  E.  476;  Reynolds  v.  McCurry,  100  Hi.  356; 
Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Miller  v. 
Smith,  26  Minn.  248,  2  N.  VV.  942,  37  Am.  Rep.  407;  Green  v.  Green,  69  N.  Y. 
553,  25  Am.  Rep.  233 ;  Mordecai  v.  Pearl,  63  Hun,  553,  18  N.  Y.  Supp.  543 ; 
Petrie  v.  Williams,  68  Ilun,  589,  23  N.  Y.  Supp.  237 ;  Brandon  v.  Brown,  106 
111.  519;  Craig  v.  Van  Bobber,  100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569; 
Lacy  V.  Pixler,  120  Mo.  383,  25  S.  W.  206;  Harvey  v.  Briggs,  68  Miss.  60.  8 
South.  274,  10  L.  R.  A.  62;  Englebert  v.  Troxell,  40  Neb.  195,  58  N.  W. 
852,  26  L.  R.  A.  177,  42  Am.  St.  Rep.  065;  Manning  v.  Johnson,  26  Ala.  446, 
62  Am.  Dec.  732 ;  Ridgeway  v^  Herbert,  150  INIo.  606,  51  S.  W.  1040,  73  Am. 
St.  Rep.  404;    MacGreal  v.  Taylor,  167  U.  S.  688,  17  Sup.  Ct  961,  42  L.  Ed. 


174  CAPACITY   OF   PARTIES.  (Ch.  6- 

He  is  not  bound  to  return  an  equivalent.  Some  of  the  courts  extend 
this  rule  to  cases  in  which  the  infant  was  even  benefited  by  disposing 
of  the  consideration.^^"  The  principle  on  which  this  rule  is  based  is 
that  the  privilege  of  the  infant  to  avoid  his  contracts  is  intended  to 
protect  him  against  the  improvidence  which  is  incident  to  his  imma- 
turity, and  that  to  require  him  to  return  the  consideration  received  and 
squandered  or  otherwise  disposed  of  during  his  minority  would  be  to 
withdraw  this  protection,  and  frustrate  the  object  of  the  law.  This 
rule  has  been  applied,  not  only  where  the  contract  was  a  sale  and  con- 
veyance of  land  by  the  infant,  but  to  sales  of  personalty  and  other  con- 
tracts as  well. 

(d)  Many  courts,  on  the  other  hand,  apply  the  principle  that  the 
privilege  of  an  infant  is  intended  as  a  shield,  and  not  as  a  sword, — 
or,  in  other  words,  as  a  protection  to  the  infant,  and  not  as  an  instru- 
ment of  fraud  and  injustice  to  others, — hold,  or  have  held,  that  an  in- 
fant cannot  avoid  his  executed  contracts,  whereby  he  has  benefited, 
and  recover  what  he  has  parted  with,  or  for  what  he  has  done,  unless  he 
can  and  does  restore  the  consideration  he  has  received ;  and  that  it  is 
immaterial  that  the  consideration  has  been  disposed  of  by  him,  or  for 
any  other  reason  cannot  be  returned.  In  other  words,  they  hold  that 
an  infant  who  receives  a  substantial  consideration  for  his  executed  con- 
tract cannot,  on  attaining  his  majority,  avoid  the  contract,  and  recover 
what  he  has  parted  with,  unless  he  can  and  does  place  the  other  party  in 
statu  quo.^"^^ 

326;  Bullock  v.  Sprowls,  93  Tex.  188,  54  S.  W.  661,  47  L.  R.  A.  326,  77  Am.  St. 
Rep.  849;  White  v.  Cottou  AVaste  Corp.,  178  Mass.  20,  59  N.  E.  642;  Gillis  v. 
Goodwin,  180  Mass.  140,  61  N.  E.  813,  91  Am.  St.  Rep.  26-5. 

iBOA  minor  who  contracts  with  his  employer  that  the  price  of  articles, 
not  necessaries,  purchased  by  him  from  his  employer,  shall  be  deducted  from 
his  wages,  may,  on  becoming  of  age,  repudiate  his  contract,  and  recover  his 
wages  without  deduction;  and  this,  even  though  he  may  have  disposed  of  the 
articles  to  his  benefit.  Morse  v.  Ely,  154  Mass.  458,  28  N.  E.  577,  26  Am.  St. 
Rep.  203.    And  see  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345. 

1"  Adams  v.  Beall.  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  379;  Wilhelxn  v. 
Hardman,  13  Md.  140;  Holden  v.  Pike,  14  Vt.  405,  39  Am.  Dec.  228;  Womack 
V.  Womack,  8  Tex.  397,  417.  58  Am.  Dec.  119;  Bailey  v.  Bamberger,  11  B, 
Mon.  (Ky.)  113.  The  right  to  avoid  is  conditional  on  his  restoring  what  he 
received  in  specie,  or,  if  he  cannot,  on  his  accounting  for  its  value.  Heath 
V.  Stevens,  48  N.  H.  251;  Hall  v.  Butterfield,  59  N.  H.  354,  47  Am.  Rep. 
209;  Bartlett  v.  Bailey,  59  N.  H.  408;  Riley  v.  Mallory,  33  Conn.  201.  In 
England  the  right  to  avoid  an  executed  sale  and  recover  back  the  price  is  de- 
nied. Holmes  v.  Blogg,  8  Taunt.  508;  Ex  parte  Taylor,  8  De  G.  M.  &  G.  258. 
See,  also,  Williams  v.  Pasquali,  Peake,  Add.  Oas.  197;  Valentini  v.  Canali,  24 
Q.  B.  D.  166.  Where  the  personal  contract  of  an  infant  is  fair  and  reason- 
able, and  free  from  fraud  or  undue  influence,  and  has  been  wholly  or  partly 
perforniod  on  both  sides,  so  that  the  infant  has  enjoyed  the  benefits  of  it,  but 
has  parted  with  what  he  has  received,  or  the  benefits  are  of  such  a  nature 
that  ho  cannot  restore  them,  he  cannot  recover  back  what  he  has  paid,    John- 


i§  112-114)      EFFECT  OF  RATIFICATION  AND  DISAFFIRMANCE.  175 


X 


SAME— EFFECT  OF  RATIFICATION  AND  DISAFFIRMANCE. 


112.  Ratification  renders  the  contract  absolutely  binding  ab  initio. 

113.  DisafiSrzaance  renders  the  contract  absolutely  void  ab  initio,  and 

the  rights  of  the  parties  are  determined  as  if  there  had  never 
been  a  contract  bet^peen  them. 

114.  Third  parties,  therefore,  acquire  no  rights  under  an  avoided  con- 

tract. 

Disaffirmance  of  a  contract  relates  back  to  the  date  of  the  contract, 
and  renders  it  void  on  both  sides  ab  initio;  ^^^  and  it  follows  that  the 
rights  of  the  parties  must  be  determined  as  if  there  never  had  been 
any  contract.  One,  therefore,  who  has  occupied  land  under  a  deed  by 
an  infant  which  is  avoided  by  him  on  becoming  of  age  is  liable  for 
rents  during  the" time  of  his  occupation,  just  as  if  there  had  been  no 
deed.^^^  If  the  infant's  vendee  has  sold  the  property  to  a  third  per- 
son, the  latter  occupies  no  better  position  than  the  vendee,  and  the  prop- 
erty may  be  recovered  from  him  even  though  he  was  a  purchaser  for 
value,  and  without  notice  of  the  defeasible  nature  of  the  title. ^"^^ 

Where  services  have  been  rendered  by  an  infant  under  a  voidable 
contract,  and  he  has  received  nothing  under  it,  he  may,  on  disaffirming 
the  contract,  recover  the  value  of  the  services  as  upon  an  implied  con- 
tract/^"^  In  such  a  case  he  may,  according  to  the  better  opinion,  re- 
cover without  any  deduction  for  damages  caused  by  his  breach  of  the 
contract,  for  to  allow  such  a  deduction  would  be,  in  effect,  to  enforce 

son  V.  Insuiiance  Co.,  56  Minn.  365,  57  N.  W.  934,  26  L.  R.  A.  187,  45  Am.  St. 
Rep.  473;  Alt  v.  Graff,  65  Minn.  191,  68  N.  W.  9.  See,  also,  Rice  v.  Butler,  160 
N.  Y.  578,  55  N.  E.  275,  47  L.  R.  A.  303,  73  Am.  St.  Rep.  703.  Cf.  Gillis  v. 
Goodwin,  ISO  Mass.  140,  61  N.  E.  813,  91  Am.  St.  Rep.  265. 

152  Rice  V.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53;  Mustard  v. 
Wohlford's  Heirs.  15  Grat.  (Va.)  329,  76  Am.  Dec.  209 ;  French  v.  McAndrew, 
61  iliss.  187;  Boyden  v.  Boy  den,  9  Mete.  (Mass.)  519;  Hoyt  v.  Wilkinson,  57 
Vt.  404;  Mette  v.  Feltgen  (111.)  27  N.  E.  911;  Id.,  148  111.  357,  36  N.  E.  81; 
Derocber  v.  Continental  Mills.  58  Me.  217,  4  Am.  Rep.  286;  Vent  v.  Osgood,  19 
Pick.  (Mass.)  572. 

1B3  French  v.  McAndrew,  61  Miss.  187. 

164  Hill  V.  Anderson,  5  Smedes  &  M.  (Miss.)  216;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Searcy  v.  Hunter,  81  Tex.  644,  17 
S.  W.  372,  26  Am.  St.  Rep.  837;  Downing  v.  Stone.  47  Mo.  App.  144;  Miles 
V.  Lingerman,  24  Ind.  385. 

isoMedbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  Gaffney  v.  Hayden,  110  Mass, 
137,  14  Am.  Rep.  580;  Pric*  v.  Furman.  27  Vt.  268,  65  Am.  Dec.  194;  Vent 
V.  Osgood,  19  Pick.  (Mass.)  572;  Ray  v.  Haines,  52  111.  485;  Judkins  v.  Walk- 
er, 17  Me.  38,  35  Am.  Dec.  229;  Vebue  v.  Pinkham,  60  Me.  142;  Lowe  v.  Siuk- 
lear.  27  Mo.  308;  Dallas  v.  Hollingsworth,  3  Ind.  537;  Lnfkin  v.  Mayall,  25  N. 
H.  82;  Dearden  v.  Adams,  19  R.  I.  217,  36  Atl.  3.  But  he  can  recover  no  more 
than  he  is  equitably  entitled  to  under  all  the  circumstances.  Hagerty  y.  Lock 
Co.,  62  N.  H.  576, 


176  CAPACITY   OF  PARTIES.  (Ch.  6 

the  contract.^"'  So,  also,  if  an  infant  has  paid  money  or  parted  with 
other  property  under  a  voidable  contract,  and  has  himself  received 
nothing,  he  may  recover  what  he  has  parted  with  on  avoiding  the  con- 
tract.^'^  As  to  whether  an  infant  who  has  received  something  under 
his  contract  can  avoid  it  and  recover  what  he  has  parted  with,  or  for 
what  he  has  done,  the  authorities  are  conflicting.  We  have  already 
discussed  this  question,  and  shown  the  different  positions  which  the 

(j\       courts  have  taken.^''® 

♦  )''''  A-disaffirmarlce  cannot  be  retracted.  Ratification  of  a  contract  after 
it  has  once  been  disaffirmed  comes  too  late.^^" 


SAME— TOUTS  IN  CONNECTION  WITH  CONTRACTS. 

115.  Tliongli  an  infant  is  liable  for  Ms  torts,  a  breacli  of  contract 

cannot  be  treated  as  a  tort,  so  as  to  make  him  liable.     The  tort 
must  be  separate  and  independent  of  it. 

116.  At  common  laxr,  though  it  is  otherMrise  in  equity,  an  infant's  false 

representations  as  to  his  age  will  not  estop  him  from  avoiding 
his  contract;  they  may,  hon^ever,  render  him  liable  in  an  action 
for  deceit. 

Though  an  infant  is  liable  for  his  torts,  it  is  well  settled  that  a 
breach  of  contract  cannot  be  treated  as  a  tort,  so  as  to  make  him  liable. 
The  wrong,  according  to  the  weight  of  authority,  must  be  more  than  a 
misfeasance  in  the  performance  of  the  contract,  and  must  be  separate 
from  and  independent  of  it.^^°  Where,  for  instance,  an  infant  hired 
a  horse  to  ride,  and  injured  it  by  overriding,  it  was  held  that  he  could 

166  Derocher  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286;  Whitmarsli 
V.  Hall,  3  Denio  (N.  Y.)  375;  Radley  v.  Kenedy  (City  Ct.  Brook.)  1-1  N.  Y. 
Supp.  268.  But  see  Moses  v.  Stevens,  2  Pick.  (Mass.)  332;  Thomas  v.  Dike, 
11  Vt.  273,  34  Am.  Dec.  690.  The  defendant  may  set  o£E  any  legal  claim 
against  the  infant;  as,  for  instance,  for  necessaries  furnished  him.  Meredith 
V.  Crawford,  34  Ind.  399. 

1B7  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  026;  Corpe  v.  Overton,  10  Bing.  252; 
Millard  v.  Hewlett,  19  Wend.  (N.  Y.)  301.  And  see  cases  cited  in  note  149, 
supra. 

1B8  Ante,  p.  171. 

100  McCarty  v.  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  D.  R.  A.  136;  Pippen 
V.  Insurance  Co.,  130  N.  C.  23,  40  S.  E.  822,  57  L.  R.  A.  505. 

180  Jennings  v.  Rundall,  8  Term  R.  335,  JSwell,  Lead.  Cas.  185;  Gilson  v. 
Spear,  38  Vt.  311,  88  Am.  Dec.  659;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep. 
189;  Freeman  v.  Roland,  14  R.  I.  39,  51  Am.  Rep.  340;  West  v.  Moore,  14  Vt 
447,  39  Am.  Dec.  235;  Campbell  v.  Perkins,  8  N.  Y.,  at  page  440;  Campbell  v. 
Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561;  Mathews  v.  Cowan,  59  III. 
341;  Penrose  v.  Curren,  3  Rawle  (Pa.)  351.  24  Am.  Dec.  356.  But  see  Vance 
V.  Word,  1  Nott  &  McC.  (S.  C.)  197,  9  Am.  Dec.  683;  Peigne  v.  Sutcllffe,  4  Mc- 
Cord  (S.  C.)  387,  17  Am.  Dec.  756;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420, 
58  Am.  Rep.  53;  Fitts  v.  Hall,  9  N.  H.  441.    An  infant  cannot  he  held  liable 


§§  115-116)       TORTS   IN    CONNECTION    WITH    CONTRACTS.  177 

not  be  made  liable  upon  tbe  contract  by  framing  the  action  in  tort  for 
negligence.*'^  Where,  on  the  other  hand,  an  infant  hired  a  horse  ex- 
pressly for  riding,  and  not  for  jumping,  and  then  lent  it  to  a  friend, 
who  killed  it  in  jumping,  he  was  held  liable,  because  what  he  had  done 
was  not  an  abuse  of  the  contract,  but  an  act  which  he  was  expressly 
forbidden  to  do,  and  was,  therefore,  independent  of  the  contract.*'^ 

The  fraud  of  an  infant  in  falsely  representing  himself  to  be  of  age, 
and  so  inducing  another  to  contract  with  him,  does  not  estop  him  from 
pleading  his  infancy  if  sued  upon  his  contract.^**^  He  may,  however, 
in  many  jurisdictions,  be  held  liable  in  an  action  for  deceit.***  In 
equity,  where  the  infant  has  falsely  represented  that  he  was  of  age,  or 
taken  active  steps  to  conceal  his  age,  or  been  otherwise  guilty  of  fraud, 
and  has  thereby  induced  the  other  party  to  enter  into  the  contract,  his 

for  false  warranty  on  an  exchange  of  horses,  since  it  is  "a  case  In  which  the 
assumpsit  is  clearly  the  foundation  of  the  action;  for  it  is  in  fact  undertaliing 
that  the  horse  w?.s  sound."  An  infant  is  not  bound  on  his  warranties  in 
an  application  for  insurance,  and  the  insurer  cannot  defend  an  action  on  the 
policy  by  proving  th-^ir  falsity.  O'Rourke  v.  Insurance  Co.,  23  R.  I.  457,  50  Atl. 
834,  57  L.  R.  A.  496,  91  Am.  St.  Rep.  643.  Green  v.  Greenbank,  2  Marsh.  485. 
A  promise  by  an  infant  to  marry  is  not  binding  on  him,  but  he  may  never- 
tlieless  be  held  liable  for  his  tort  in  seducing  a  woman  under  promise  of  mar- 
riage.    Becker  v.  Mason,  93  Mich.  336,  53  N.  W.  361. 

161  Jennings  v.  Rundall,  8  Term  R.  335.  He  may,  however,  sue  in  trespass, 
though  he  cannot  bring  an  action  on  the  case,  as  the  latter,  but  not  the  for- 
mer, would  be  based  on  lawful  possession  in  defendant  under  the  contract. 
Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561. 

162  Biirnird  v.  Hag.m's,  15  C.  B.  (N.  S.)  45;  Homer  v.  Thwing,  3  Pick. 
(Mass.)  492  ;  Ray  v.  Tubbs,  50  Vt.  688,  28  Am,  Rep.  519.  But  see  Penrose  v. 
Curren,  3  Rawle  (Pa.)  351,  24  Am.  Dec.  356. 

163  Studwell  V.  Shapter,  54  N.  Y.  249;  Burdett  v.  Williams  (D.  C.)  30  Fed. 
697 ;  Wieland  v.  Kobick,  110  111.  16,  51  Am.  Rep.  676 ;  Conroe  v.  Birdsall,  1 
Johns.  Cas.  (N.  Y.)  127.  1  Am.  Dec.  105;  Merrlam  v.  Cunningham,  11  Cush. 
(Masii,  40;  Brown  v.  McCune,  5  Sandf.  (N.  Y.)  228;  Burley  v.  Russell,  10  N. 
H.  184,  34  Am.  Dec.  146;  Conrad  v.  Lane,  26  Minn.  389,  4  N.  W.  695,  37  Am. 
Rep.  412;  Sims  v.  Everhardt,  102  U.  S.  300,  26  L.  Ed.  87;  Norris  v.  Vance,  3 
Rich.  Law  (S.  C.)  164;  Whitcomb  v.  Joslyn,  51  Vt.  79,  31  Am.  Rep.  678;  Mc- 
Kamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312.  But  see  Bradshaw  v.  Van  Winkle, 
133  Ind.  134,  32  N.  E.  877;  Lacy  v.  Pixler,  120  Mo.  383,  25  S.  W.  206;  Carolina 
Interstate  Buildiiig  &  Loan  Ass'n  v.  Black,  119  N.  C.  323,  25  S.  E.  975;  New 
York  Building  Loan  Banking  Co.  v.  Fisher,  20  Misc.  Rep.  244,  45  N.  Y.  Supp. 
795.  Contra,  under  Kansas  statute.  Dillon  v.  Burnham,  43  Kan.  77,  22  Pac, 
1016. 

164  Fitts  V.  Hall,  9  N.  H.  441;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  B.  420,  58 
Am.  Rep.  53;  Wallace  v.  Morss,  5  Hill  (N.  Y.)  391;  Burley  v.  Russell.  10  N. 
H.  184,  34  Am.  Dec.  146 ;  Manning  v.  Johnson,  26  Ala.  446,  62  Am.  Dec.  732 ; 
Eckstein  v.  Frank,  1  Daly  (N.  Y.)  334.  Contra,  Nash  v.  Jewett,  61  Vt.  501,  18 
Atl.  47,  4  L.  R.  A.  561,  15  Am.  St.  Rep.  931;  Johnson  v.  Pie,  1  Sid.  258;  Slay- 
ton  V.  Barry,  175  Mass.  513,  56  N.  E.  574,  49  L.  R.  A.  560,  78  Am.  St.  Rep.  510. 
He  is  not  liable  in  trover.    Slayton  v.  Barry,  supra. 

Clakk  Cont.  (2d  Ed.) — 12 


178  CAPACITY  OF  PARTIES.  (Ch.  6 

fraud  will  estop  him  from  pleading  his  infancy  to  the  other's  preju- 
dice.^*^ Mere  failure  to  disclose  his  age,  however,  is  not  such  fraud  as 
will  warrant  equitable  interference  with  the  common-law  rule/®' 
Where  an  infant  obtains  goods  by  false  and  fraudulent  representations 
as  to  his  age,  the  better  opinion  is  that  the  other  party  may  rescind  and 
recover  them  back/®'^ 

We  have  already  to  some  extent  noticed  the  remedies  of  the  adult 
party  where  an  infant  repudiates  his  contract  after  having  received  the 
consideration.  In  such  a  case,  he  no  longer  has  a  right  to  hold  the 
consideration ;  and,  if  he  refuses  to  return  it,  he  is,  according  to  the 
better  opinion,  guilty  of  a  tort,  for  which  the  other  party  may  maintain 
an  action.^ "^ 

If  the  infant,  while  rightfully  in  possession  of  the  consideration 
which  he  has  received,  has  wasted  or  disposed  of  it  during  his  minority, 
and  he  is  allowed  to  disaffirm  his  contract,  the  other  party  is  remedi- 
less,^®^ unless  he  can  trace  the  property  into  the  hands  of  those  who 
obtained  it  from  the  infant. 


INSANE  PERSONS— IN  GENERAL. 


f  ^  fl 


117.    As  a  rule,  a  contract  entered  into  by  an  insane  person,  or  person 
non  compos  mentis,  is  voidable  at  bis  option;    but  tbe  rule  is 
subject  to  exceptions,  as  folloTtrs: 
EXCEPTIONS— (a)    Tbe  following  contracts  are  valid  and  binding: 

(1)  Contracts  created  by  laiv,  or  quasi  contracts. 

(2)  In   most,   but   not   all,    jurisdictions,    ivbere   tbe    sane   party 

acted    fairly    and    in    good    faitb,    without    actual    or    coni- 
tructive  knowledge  of  tbe  other's  insanity,  and  tbe  contract 
bas  been  so  far  executed  tbat  be  cannot  be  placed  in  statu 
quo. 
(b)    Tbe  follow^ing  contracts  are  void: 

(1)  In  most,  but  not  all,  jurisdictions,  contracts  by  a  person  wbo 

bas    been    judicially    declared    insane    on    inquisition,    and 
placed  under  guardianship. 

(2)  In   a   few^   jurisdictions,    deeds;     and,    in    most    jurisdictions, 

powers  of  attorney  or  other  appointments  of  an  agent. 

188  Ferguson  v.  Bobo,  54  Miss.  121.  See  Evans  v.  Morgan,  69  Miss.  3'JS,  12 
South.  270;  Cliarles  v.  Hastedt,  51  N.  J.  Eq.  171,  26  Atl.  564;  Thormaehlen  v. 
Kaeppel,  86  Wis.  378.  56  N.  W.  1089. 

16G  Baker  v.  Stone,  136  Mass.  405;  Sewell  v.  Sewell,  92  Ky.  500,  18  S. 
W.  162,  36  Am.  St.  Rep.  606;  Davidson  v.  Young,  38  111.  145;  Brantley  v.  Wolf, 
60  Miss.  420;   Price  v.  Jennings,  62  Ind.  111. 

187  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Neff  v.  Landis,  110 
Pa.  204,  1  Atl.  177. 

188  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Mustard  v.  Wohl- 
ford's  Heirs,  15  Grat.  (Ya.)  329,  70  Am.  Dec.  209;  Vasse  v.  Smith,  6  Cranch, 
226,  3  L.  Ed.  207 ;   Manning  v.  Johnson,  26  Ala.  446,  62  Am.  Dec.  732. 

i«»  Ante,  p.  173,  note  149. 


§  117)  INSANE   PERSONS.  1T9 

Formerly  it  was  thought  that  a  man  could  not  avoid  a  contract  en- 
tered into  while  he  was  non  compos  mentis.  It  was  said  to  be  a  maxim 
of  the  common  law  that  no  man  of  full  age  should  be  allowed  by  plea 
to  stultify  himself,  and  thereby  avoid  his  own  deed  or  contract.^^°  It 
seems,  however,  that  this  never  was  the  common  law,  and  that  the 
cases  so  holding  were  erroneous.^"  At  any  rate,  the  doctrine  has  long 
since  been  exploded,  and  it  is  almost  universally  held  that  a  contract 
made  by  a  person  who  is  lacking  in  mental  capacity,  unless  he  has  been 
judicially  declared  insane,  is  at  most  voidable.^^^ 

The  incapacity  may  result  from  lunacy,^ '^^  from  idiocy,*'^*  from  senile 
dementia,^^''  or  any  other  defect  or  disease  of  the  mind,  whatever  may 
be  its  cause.^^®  To  render  a  person  thus  incapable  of  contracting,  his 
infirmity  need  not  be  so  great  as  to  dethrone  his  reason,  nor  amount 
to  entire  want  of  reason; "'  but,  on  the  other  hand,  it  must  be  some- 
thins:  more  than  mere  weakness  of  intellect/^*  It  must  be  such  as  to 
render  the  person  incapable  of  comprehending  the  subject  of  the  con- 

170  Beverley's  Case,  4  Coke,  123;   Co.  Litt.  147;   2  Bl.  Comm.  292. 

iTi  Fitzli.  Nat.  Brev.  202;  Yates  v.  Boen,  2  Strange,  1104;  Webster  v.  Wood- 
ford, 3  Day  (Conn,)  90;   Mitchell  v.  Kingman,  5  Pick.  (Mass.)  431. 

172  Post.  p.  181. 

17  3  MeiTitt  V.  Gumaer,  2  Cow.  (N.  T.)  552. 

i74Burnham  v.  Kldwell,  113  111.  425;  Ball  v.  Mannin,  3  Bligh  (N.  S.)  1, 
Ewell,  Lead.  Cas.  534. 

i7  5As  to  weakness  of  intellect  or  imbecility  from  old  age,  see  Guild  v.  Hull, 
127  III.  523,  20  N.  E.  665;  Peabody  v.  Kendall,  145  HI.  519,  32  N.  E.  674;  Argo 
V.  Coffin,  142  111.  368.  32  N.  E.  679,  34  Am.  St.  Rep.  86;  Lynch  v.  Doran.  95 
Mich.  895,  54  N.  W.  882 ;  King  v.  Cummings,  60  Vt.  502,  11  Atl.  727 ;  Keeble 
V.  Cummins,  5  Hayw.  (Tenn.)  43;  Coleman  v.  Frazer,  3  Bush  (Ky.)  300; 
Bressey's  Adm'r  v.  Gross  (Ky.)  7  S.  W.  150;  Clark  v.  Kirkpatrick  (N.  J.  Ch.) 
16  Atl.'  309;  Trimbo  v.  Trimbo,  47  Minn.  389,  50  N.  W.  350;  Cole  v.  Cole,  21 
Neb.  84,  31  N.  W.  493;  Crowe  v.  Peters,  63  Mo.  429;  Shaw  v.  Ball,  55  Iowa,  55, 
7  N.  W.  413;  Marshall  v.  Marshall,  75  Iowa,  132.  39  N.  W.  2.30.  Old  age 
is  not  of  itself  evidence  of  incapacity.  Buckey  v.  Buckey,  38  W.  Va.  168,  18 
S.  E.  383.     And  see  cases  cited  above. 

176  See  Henderson  v.  McGregor.  30  Wis.  78;  Brothers  v.  Bank,  84  Wis.  381, 
54  N.  W.  786,  36  Am.  St.  Rep.  932;  Somes  v.  Skinner,  16  Mass.  348;  Hale  v. 
Bro^Ti.  11  Ala.  87;  Conant  v.  Jackson,  16  Vt.  335;  Wilson  v.  Oldham,  12  B. 
Mon.  (Ky.)  55;  Johnson  v.  Chadwell,  8  Humph.  (Tenn.)  145.  Result  of  habit- 
ual drunkenness:  Bliss  v.  Railroad  Co.,  24  Vt.  424;  Menkius  v.  Lightner,  18 
111.  282. 

17  7  Ball  V.  Mannin,  3  Bligh  (N.  S.)  1,  Ewell,  Lead.  Cas.  534. 

17S  Dennett  v.  Dennett,  44  N.  H.  531,  81  Am.  Dec.  97;  Stone  v.  Wilbem, 
83  111.  105;  Lawrence  v.  Willis,  75  N.  C.  471;  Simonton  v.  Bacon,  49  Miss. 
582;  Des  Moines  Nat.  Bank  v.  Chisholm,  71  Iowa.  675,  33  N.  W.  234;  Farnam 
V.  Brooks,  9  Pick.  (Mass.)  212;  Guild  v.  Hull,  127  111.  523,  20  N.  E.  665; 
Davis  v.  Phillips,  85  Mich.  198.  48  N.  W.  513;  White  v.  Farley,  81  Ala.  563.  8 
Soutli.  215;  Maddox  v.  Simmons,  31  Ga.  528;  Kimball  v.  Cuddy,  117  111.  213, 
7  N.  E.  589;  Dewey  v.  Allgire,  37  Neb.  6,  55  N.  W.  276,  40  Am.  St.  Rep.  468; 
Cain  V.  Warford,  33  Md.  23;  Cadwallader  v.  West,  48  Mo.  483.  The  fact  that 
a  person  is  deaf  and  dvunD  does  not  alone  render  him  incapable.    See  Brower 


ISO  CAPACITY   OP   PARTIES.  (Ch.  6 

tract,  and  its  nature  and  probable  consequences.*^"  He  need  not  be 
permanently  insane;  it  is  enough  if  he  is  insane  at  the  time  he  enters 
into  the  contract.^ ^°  A  contract  made  during  a  lucid  interval  is 
binding.*" 

Nor  need  the  insanity  be  general.  A  person  who  is  laboring  under 
an  insane  delusion  is  incapable  of  making  a  binding  contract  if  his  de- 
lusion is  so  connected  with  the  subject-matter  of  the  contract  as  to 
render  him  incapable  of  comprehending  its  nature  and  probable  con- 
sequences. If  such  was  his  condition,  he  may  avoid  the  contract, 
though  he  may  have  been  perfectly  sane  in  respect  of  other  matters, 
and  might  have  been  able  to  make  a  binding  contract  in  reference  to 
some  other  subject-matter.*** 

Effect  of  Contracts. 

Thus  far  we  have  spoken  of  the  contracts  of  a  person  non  compos 
mentis  as  being  voidable  only,  and  as  a  rule  they  are  so;  but,  as  in  the 


V.  Fisher,  4  Johns.  Ch.  (N.  Y.)  441;   Brown  v.  BrowB,  3  Conn.  299,  8  Am.  Dec. 
187;  Barnett  v.  Baruett,  54  N.  C.  221. 

17  8  Bishop,  Cont.  §  962;  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97; 
Perry  v.  Pearson,  135  111.  218,  25  N.  E.  636;  Bond  v.  Bond,  7  Allen  (Mass.)  1; 
Young  V.  Stevens,  48  N.  H.  135,  2  Am.  Rep.  202,  97  Am.  Dec.  592;  Mussel- 
man  V.  Cravens,  47  Ind.  1;  Lilly  v.  Waggoner,  27  111.  396;  Baldwin  v.  Duntou, 
40  111.  188;  Titcomb  v.  Vantyle,  84  111.  371;  Worthington  v.  Worthington  (Md.) 
20  Atl.  911;  Brown  v.  Brown,  108  Mass.  386;  Crowther  v.  Rowlandson,  27 
Cal.  381;  Somers  v.  Pumphrey,  24  Ind.  231;  Bumham  v.  Mitchell,  34  Wis. 
136;  Henderson  v.  McGregor,  30  Wis.  78;  Hovey  v.  Chase,  52  Me.  304,  83 
Am.  Dec.  514;  Hovey  v.  Hobson,  55  Me.  256;  Aiman  v.  Stout,  42  Pa.  114; 
Noel  V.  Karper,  53  Pa.  97;  Dicken  v.  Johnson,  7  Ga.  484;  Lozear  v.  Shields, 
23  N.  J.  Eq.  509;   Tolson's  Adm'r  v.  Garner,  15  Mo.  494. 

180  Curtis  V.  Brownell,  42  Mich.  165,  3  N.  W.  936;  Peaslee  v.  Eobbins,  3 
Mete.  (Mass.)  164;  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240. 

181  Hall  V.  Warren,  9  Ves.  605;  Lilly  v.  Waggoner,  27  111.  395;  McCormick 
V.  Littler,  85  111.  62,  28  Am.  Rep.  610;  Smith  v.  Smith,  108  N.  C.  365,  12  S. 
E.  1045,  and  13  S.  E.  113;  Jones'  Adm'r  v.  Perkins,  5  B.  Mon.  (Ky.)  222; 
Norman  v.  Trust  Co.,  92  Ga.  295,  18  S.  E.  27;  Beckwith  v.  Butler,  1  Wash. 
(Va.)  224;  Carpenter  v.  Carpenter,  8  Bush  (Ky.)  283;  Staples  v.  Wellington, 
58  Me.  453 ;  Stewart  v.  Redditt,  3  Md.  81 ;  Wright  v.  Market  Bank  (Term.)  60 
S.  W.  623.  The  authorities  are  conflicting  as  to  whether  the  burden  is  on  the 
other  party  to  show  that  the  contract  was  made  in  a  lucid  interval.  That  it 
is,  see  Fishburne  v.  Ferguson's  Heirs,  84  Va.  87,  4  S.  E.  575;  Sheets  v.  Bray, 
125  Ind.  33,  24  N.  E.  357;  Hall  v.  Warren,  9  Ves.  605.  Contra,  Wright  v. 
Wright,  139  Mass.  177,  29  N.  E.  380. 

182  Bond  V.  Bond,  7  Allen  (Mass.)  1;  Riggs  v.  Tract  Soc,  95  N.  Y.  503; 
Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Searle  v.  Galbraith,  73  111. 
269;  Alston  v.  Boyd,  6  Humph.  (Tenn.)  .504;  Samuel  v.  Marshall,  3  Leigh 
(Va.)  567 ;  Dominick  v.  Randolph,  124  Ala.  557,  27  South.  481.  Monomania  on 
the  sul)Ject  of  religion  or  spiritualism.  Boyce's  Adm'r  v.  Smith,  9  Grat  (Va..) 
704,  GO  Am.  Dec.  313;  Lewis  v.  Arbuckle,  So  Iowa,  3.35,  52  N.  W.  237,  16  L  R. 
A.  677;  West  v.  Russell,  48  Mich.  74,  11  N.  W.  812;  Bui-ges3  y.  Pollock,  53 
Iowa,  273,  5  N.  W.  179,  36  Am.  Rep.  218. 


§  117)  INSANE    PERSONS.  181 

case  of  infants,  some  of  his  contracts  are  valid,  and  some  of  them  are 
held  to  be  absolutely  void.  In  some  jurisdictions  the  contract  is  held 
binding  where  the  other  party  acted  in  good  faith,  and  without  knowl- 
edge of  the  insanity.     Of  this  we  will  presently  speak  at  some  length. 

Same — Quasi  Contracts. 

As  in  the  case  of  infancy,  the  rule  that  a  person  may  avoid  a  con- 
tract made  while  he  was  insane  does  not  apply  to  so  called  contracts 
created  by  law,  or  quasi  contracts,  for  here  the  obligation  is  imposed  by 
law  without  regard  to  the  consent  of  the  party  bound.^'' 

Same — Contracts  for  Necessaries. 

Nor  does  the  rule  apply  to  the  contracts  of  a  person  non  compos  men- 
tis for  necessaries  furnished  to  himself  or  to  his  wife,  or,  in  some 
jurisdictions,  to  his  children. ^^*  The  rules  on  this  subject  are  substan- 
tially the  same  as  in  the  case  of  an  infant's  necessaries;  except,  it 
seems,  that,  unlike  an  infant,  a  person  non  compos  mentis  is  liable  for 
labor  and  materials  furnished  for  the  preservation  of  his  estate,  where 
they  were  necessary  for  its  preservation.^ ^'^  In  all  cases  the  credit  must 
have  been  given  to  the  insane  person,  and  not  to  some  third  person.^®* 
The  fact  that  the  person  has  been  judicially  declared  insane,  and  placed 
under  guardianship,  does  not  prevent  his  liability  for  necessaries.^^'' 

Same — Void  and  Voidable. 

It  has  been  held  by  some  courts  that  the  deed  of  an  insane  per- 
son,^ *^  or  a  power  of  attorney  or  other  appointment  of  an  agent,^®^ 

183  Reando  v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13.    Post,  p.  547. 

184  La  Rue  v.  Gilkyson,  4  Pa.  375,  45  Am.  Dec.  700;  Richardson  v.  Sti'ong, 
35  N.  C.  106,  55  Am.  Dec.  430;  McCormick  v.  Littler,  85  111.  62,  28  Am.  Rep. 
610;  Baxter  v.  Portsmouth,  5  Bam.  &  C.  170;  Van  Horn  v.  Hann,  89  N.  J. 
Law,  207;  Read  v.  Legard,  6  Exch.  636;  Surles  v.  Pipkin,  69  N.  C.  513;  Shaw 
V.  Thompson,  16  Pick.  (Mass.)  198,  26  Am.  Dec.  655;  Sawyer  v.  Lufkin,  56 
Me.  308;  Reando  v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13;  Pearl 
V.  McDowell,  3  J.  J.  Marsh.  (Ky.)  658,  20  Am.  Dec.  199;  Kendall  v.  May,  10 
Allen  (Mass.)  59;  Rhodes  v.  Rhodes,  44  Ch.  Div.  94;  SCEVA  v.  TRUE,  53 
N.  H.  627.  Liability  for  necessaries  furnished  his  wife.  Read  v.  Legard, 
supra.  He  has  even  been  held  liable  for  luxuries  furnished  in  good  faith. 
Kendall  v.  May,  supra. 

18  5  Williams  v.  Went^worth,  5  Beav.  325. 

i88Bish.  Cont.  §  968;  Massachusetts  Hospital  v.  Fairbanks,  129  Mass.  78, 
37  Am.  Rep.  303;   Id.,  132  Mass.  414. 

187  McCrillis  v.  Bartlett,  8  N.  H.  569;  Sawyer  v.  Lufkin,  56  Me.  308;  Reando 
V.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13 ;  Baxter  v.  Portsmouth,  5 
Barn.  &  C.  170;    Fruitt  v.  Anderson,  12  111.  App.  421. 

188  Van  Deusen  v.  Sweet,  51  N.  Y.  378  (but  see  Ingraham  v.  Baldwin,  9  N. 
Y.  45);    Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W.  512;    In  re  Estate  of 

180  Dexter  v.  Hall,  15  Wall.  9,  21  L.  Ed.  73.  And  see  Marvin  v.  Inglis,  39 
How.  Prac.  (N.  Y.)  329  ;  Plaster  v.  Rigney,  97  Fed.  12,  38  C.  C.  A-  25 ;  Mc- 
Ginn V.  McClun,  176  111.  370.  52  N.  E.  928.  But  see  Williams  v.  Sopieha, 
94  Tex.  430,  61  S.  W.  115;   Tiffany,  Ag.  OS. 


182  CAPACITY  OF  PARTIES,  (Ch.  6 

is  absolutely  void.  In  most  jurisdictions,  however,  no  distinction  is 
made  in  this  respect  between  the  deed  of  an  insane  person  and  that 
of  an  infant.  It  is  held  to  be  voidable,  and  not  void.^""  As  an  almost 
universal  rule,  all  his  contracts  other  than  valid  ones  are  not  void,  but 
simply  voidable  at  his  option  ;^^^  and  they  are  binding  on  the  other 
party  if  he  elects  to  hold  him.^^^ 

Inquisition  and  Adjudication  of  Lunacy. 

In  most  jurisdictions  it  is  held — in  some,  however,  by  reason  of  ex- 
press statutory  provisions — that  if  a  person  has  been  judicially  deter- 
mined to  be  insane,  and  placed  under  guardianship,  the  decree  and 
letters  of  guardianship  take  from  him  all  capacity  to  contract,  and  that 
his  contracts  while  under  guardianship  are  absolutely  void.^"^  In  other 
jurisdictions  the  fact  that  he  has  been  adjudged  insane,  and  placed  un- 
der guardianship,  only  raises  a  presumption  of  incapacity  to  contract, 
which  may  be  rebutted ;  but  the  presumption  is  very  strong,  and  the 
proof  of  capacity  must  be  clear,^^* 

Desilver,  5  Rawle  (Pa.)  Ill,  28  Am.  Dee.  645;  Farley  v.  Parker,  6  Or.  105,  25 
Am.  Rep.  504;  Goodyear  v.  Adams,  52  Hun,  612,  5  N.  Y.  Supp.  275;  Brown  v. 
Miles,  61  Hun,  453,  16  N.  Y.  Supp.  251;  Elder  v.  Schumaclier,  18  Colo.  433,  33 
Pac.  175 ;  Thompson  v.  Leach,  3  Salk.  300 ;  Edwards  v.  Davenport  (C.  C.)  20 
Fed.  756. 

i90Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Wait  v.  Maxwell,  5 
Pick.  (Mass.)  217,  16  Am.  Dec.  391;  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  OCi 
Am.  Dec.  414;  Arnold  v.  Iron  Works,  1  Gray  (Mass.)  434;  Allis  v.  Billings,  6 
Mete.  (Mass.)  415,  39  Am.  Dec.  744;  Evans  v.  Horan,  52  Md.  602;  Bm-nham 
V.  Kidwell,  113  111.  425;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  71G: 
Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E.  249;  Breckenridge's  Heirs  v.  Orms- 
by,  1  J.  J.  Marsh,  a^y.)  245,  19  Am.  Dec.  71;  Allen  v.  Berryhill,  27  Iowa,  534, 
1  Am.  Rep.  309;  French  Lumbering  Co.  v.  Theriault,  107  Wis.  627,  83  N.  W. 
927,  51  L.  R.  A.  910,  81  Am.  St.  Rep.  856. 

191  Eaton  V.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716;  Carrier  v.  Sears,  4 
Allen  (Mass.)  326 ;  Burnham  v.  Kidwell,  113  111.  425 ;  Arnold  v.  Iron  Works, 
1  Gray  (Mass.)  434;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Riley  v. 
Carter,  76  Md.  581,  25  Atl.  667,  19  L.  R.  A.  489,  35  Am.  St.  Rep.  443;  .Etna 
Life  Ins.  Co.  v.  Sellers,  154  Ind.  370,  56  N.  E.  97,  77  Am.  St.  Rep.  481. 

192  Harmon  v.  Harmon  (G.  C.)  51  Fed.  113;  Allen  v.  Berryhill,  27  Iowa, 
534,  1  Am.  Rep.  309. 

193  Wait  V.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391;  Leonard  v. 
Leonard.  14  Pick.  (Mass.)  280;  Ranuels  v.  Geruer,  80  Mo.  474;  Fitzhugh  v. 
Wilcox,  12  Barb.  (N.  Y.)  235;  Bradbury  v.  Place  (Me.)  10  Atl.  461;  Mohr  v. 
Tulip,  40  Wis.  66;  Griswold  v.  Butler,  3  Conn.  227.  Where  the  guardian  was 
discharged  as  being  an  unsuitable  person,  and  no  other  guardian  was  appoint- 
ed, the  decree  adjudging  the  ward  insane  was  not  conclusive  as  to  his  in- 
capacity after  the  guardian's  discharge.  Willwerth  v.  Leonard,  156  Mass. 
277,  31  N.  E.  299.  The  rule,  it  has  been  held,  does  not  apply  to  statutory  pro- 
ceedings merely  to  determine  whether  a  pei'son  is  insane  for  the  purpose  of 
committing  him  to  a  hospital  for  the  insane.  Knox  v.  Haug,  48  Minn.  58, 
50  N.  W.  934. 

194  As  to  this,  see  Mott  v.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  997;  Hart  v. 
Dcamer,  6  Wend.  (N.  Y.)  497;  Parker  v.  Davis,  53  N.  C.  460;   Hopson  v.  Boyd, 


§  117)  INSANE   PEIISONS.  Iii3 

Ignorance  and  Good  Faith  of  the  Other  Party. 

In  some  states  it  is  held  tliat  the  contract  of  an  insane  person  may 
be  avoided  by  him,  though  it  is  fair  and  reasonable,  and  though  it  was 
entered  into  by  the  other  party  in  perfect  good  faith,  and  in  ignorance 
of  his  infirmity.^"'*  "The  fairness  of  the  defendant's  conduct,"  it  was 
said  in  a  leading  Massachusetts  case,  "cannot  supply  the  plaintiff's  want 
of  capacity."  ^^* 

The  weight  of  authority,  however,  in  this  country  is  in  favor  of  the 
doctrine  that,  if  the  sane  party  did  not  know,  or  have  reasonable  cause 
to  know,  of  the  other's  insanity,  and  acted  in  good  faith,  and  the  con- 
tract was  fair,  and  has  been  so  far  executed  that  the  parties  cannot  be 
placed  in  statu  quo,  it  cannot  be  avoided.  In  Molton  v.  Camroux,  a 
leading  English  case,  a  lunatic  had  purchased  annuities  of  a  society, 
paid  the  money,  and  died,  whereupon  his  administratrix  sued  the  so- 
ciety to  recover  back  the  money  on  the  ground  that  the  contract  was 
void.  The  jury  found  that  at  the  time  of  the  contract  the  deceased 
was  insane,  but  that  there  was  nothing  to  indicate  this  to  the  defendant, 
and  that  the  transaction  was  in  good  faith.  It  was  held  that  the  money 
could  not  be  recovered.  "The  modern  cases  show,"  it  was  said,  "that 
when  that  state  of  mind  was  unknown  to  the  other  contracting  party, 
and  no  advantage  was  taken  of  the  lunatic,  the  defense  cannot  prevail, 
especially  where  the  contract  is  not  merely  executory,  but  executed  in 
whole  or  in  part,  and  the  parties  cannot  be  restored  to  their  original 
position."  ^"  This  case  has  been  expressly  followed  and  applied  in  a 
number  of  our  courts,  while  others,  though  not  citing  it,  have  laid 
down  the  same  doctrine.^  "^ 

6  B.  Mon.  (Ky.)  296;  Snook  v.  Watts,  11  Beav.  105;  In  re  Gangwere's  Es- 
tate, 14  Pa.  417,  53  Am.  Dec.  554 ;  Topeka  Water  Supply  Co.  v.  Root,  56  Kan. 
187,  42  Pac.  715;   Lower  v.  Sclmmacber,  01  Kan.  G25,  60  Pac.  538. 

180  seaver  v.  Phelps,  11  Pick.  fMass.)  304,  22  Am.  Dec.  372;  Gibson  v.  So- 
per,  6  Gray,  279,  66  Am.  Dec.  414;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec. 
705;  Fitzgerald  v.  Keed,  9  Smedes  &  M.  (Miss.)  94;  Sullivan  v.  Flynn,  20  D. 
C.  396;  Brigham  v.  Fayerweatber,  144  Mass.  52,  10  N.  E.  735;  Orr  v.  Mort- 
gage Co..  107  Ga.  499,  33  S.  E.  708;  Dewey  v.  Allgire,  37  Neb.  6.  m  N.  W. 
276,  40  Am.  St.  Rep.  468;   Wager  v.  Wagoner,  53  Neb.  511,  73  N.  W.  937. 

186  Seaver  v.  Phelps,  supra. 

197  Molton  V.  Camroux,  2  Exch.  489,  4  Exch.  17. 

198  Eaton  V.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716;  Mutual  Life  Ins. 
Co.  V.  Hunt,  79  N.  Y.  541;  Ingraham  v.  Baldwin,  9  N.  Y.  45;  Boyer  v.  Berry- 
man,  123  Ind.  451,  24  N.  E.  249;  Lincoln  v.  Buckmaster,  32  Vt  652;  Young 
V.  Stevens,  48  N.  H.  136,  2  Am.  Rep.  202,  97  Am.  Dec.  592;  Schaps  v.  Lehuer, 
54  Minn.  208,  55  N.  W.  911;  GRIBBEN  v.  MAXWELL,  34  Kan.  8;  Abbott  v. 
Cre.al,  56  Iowa,  175,  9  N.  W.  115;  Shoulters  v.  Allen,  51  Mich.  529,  16  N.  W. 
888;  Mattbiessen  &  Weicbers  Relining  Co.  v.  McMabon's  Adm'r,  38  N.  J.  Law, 
536;  Bumham  v.  Kidwell,  113  111.  425;  Scanlon  v.  Cobb,  85  111.  296;  North- 
western Ins.  Co.  V.  Blankensbip,  94  Ind.  535,  48  Am.  Rep.  185;  McCoiinick 
V.  Littler,  85  111.  62,  28  Am.  Rep.  610;  Reals  v.  See,  10  Pa.  56,  49  Am.  Dec. 
573;    Riggan  v.  Green,  80  N.  C.  236,  30  Am.  Rep.  77;    Myers  v.  Kuabe,  51 


184  CAPACITY  OP  PARTIES.  (Ch.  6 

The  distinctions  between  executory  and  executed  contracts  how- 
ever, suggested  in  Molton  v.  Camroux,  appear  to  have  been  repudiated 
in  England,  and  in  that  country  the  more  recent  rule  appears  to  be 
that  the  contract  of  a  lunatic  is  binding  unless  the  other  party  knew 
of  his  condition.^"' 

The  doctrine  thus  stated,  however,  is  not  to  be  applied  as  a  technical 
rule  in  all  cases.  "The  cases  will  disclose,"  it  has  been  said,  "that  one 
dealing  with  an  insane  person,  and  not  knowing  his  condition,  or  any 
facts  to  put  him  on  his  guard,  will  be  protected  by  the  courts  of  law 
and  equity  against  such  person's  repudiating  his  contract  on  the  ground 
of  his  mental  incapacity.  But  the  rule  is  not  a  technical  one,  to  be 
relied  on  at  all  times  and  under  all  circumstances.  It  is  applied  in 
each  case  only  to  prevent  a  wrong  being  done,  and  is  based  on  the  prin- 
ciple that  'the  law  will  not  permit  the  lunatic's  infirmity  to  be  made  an 
instrument  of  fraud.'  "  *°" 


Ij^  ^1,1^    SAME— RATIFICATION  AND  AVOIDANCE. 


lis.  The  voidable  cou.tract  of  a  person  non.  compos  mentis  may  be 
ratified  or  avoided  by  himself  ivben  sane,  or  by  bis  guardian 
during  insanity,  or  by  bis  representatives  or  beirs  after  bis 
deatb. 

119.  Tbe  rigbt  to  disaffirm  is  personal,  and  neitber  tbe  otber  party  nor 
tbird  persons  can  avoid  it. 

120.  In  a  fcTsr  jurisdictions,  altbougb  tbe  otber  party  did  not  knoxr  of 
tbe  insanity  and  tbe  contract  was  fair,  tbe  consideration  receiv- 
ed by  tbe  insane  person  need  not  be  returned  as  a  condition 
precedent  to  avoidance  if  be  is  unable  to  return  it. 

121.  Tbe  contract  can  be  avoided  as  against  bona  fide  purcbasers. 

The  voidable  contracts  of  a  person  non  compos  mentis  may  be  rati- 
fied or  disaffirmed  by  him  when  he  becomes  sane,  or  during  a  lucid 
interval;  ^°^  or,  during  the  continuance  of  his  infirmit}^  by  his  com- 
mittee or  guardian;  ^°-  or,  after  his  death,  by  his  personal  representa- 

Kan.  720,  33  Pac.  602;  Harrison  v.  Otley,  101  Iowa,  652,  70  N.  W.  724;  Flach 
v.  Gottsclialk  Ck).,  88  Md.  368,  41  Atl.  908,  42  L.  R.  A.  745,  71  Am,  St  Rep. 
418;  McKenzie  v.  Donnell,  151  Mo.  431,  52  S.  W.  214;  Jamison  v.  Ctdligan, 
151  Mo.  410,  52  S.  W.  224.  If,  however,  the  lunatic  has  received  no  benefit 
xmder  the  contract,  it  has  been  said  that  he  can  recover  what  he  has  parted 
with,  notwithstanding  the  other  party's  good  faith.  Lincoln  v.  Buckmas- 
ter,  32  Vt  658;   Van  Patton  v.  Reals,  46  Iowa,  63. 

188  IMPERIAL  LOAN  CO.  V.  STONE  [1892]  1  Q.  B.  599.  See  Anson,  Cent, 
(8th  Ed.)  120. 

200  Knowlton's  Anson.  Cont.  116,  note. 

201  AlHs  V.  Billings.  6  Mote.  (Mass.)  410,  39  Am.  Dec.  744;  Gibson  v.  Soper, 
6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Arnold  v.  Iron  Works,  1  Gray  (Mass.) 
434;   Turner  v.  Rnsk.  53  Md.  65. 

2'^2  Moore  v.  Horshoy,  9  Norris  (Pa.)  196;  Halley  v.  Troester,  72  Mo.  73; 
McClain  v.  Davis,  77  lud.  419. 


§§  118-121)  RATIFICATION   AND   AVOIDANCE.  185 

tive,*"'  or  his  heirs.-°*  The  privilege  is  personal  to  the  insane  per- 
son, or  those  who  thus  represent  him;  and  neither  the  other  party  to 
the  contract  nor  third  persons  can  avoid  it.*""  Ratification  or  dis- 
affirmance need  not  be  in  express  words,  but  may  be  by  conduct,  as  in 
the  case  of  ratification  or  disaffirmance  by  a  person  of  a  contract  made 
during  infancy.'"® 

Return  of  Consideration  on  Avoidance. 

In  those  jurisdictions  where  an  insane  person's  contract  is  voidable, 
whether  it  is  executed  or  not,  and  whether  or  not  the  other  party 
acted  in  good  faith  and  in  ignorance  of  his  infirmity,  a  person  is  not 
required  to  restore,  or  offer  to  restore,  the  consideration  received  by 
him  as  a  condition  precedent  to  the  avoidance  of  a  contract  made  by 
him  while  insane.  "If  the  law  required  restoration  of  the  price  as  a 
condition  precedent  to  the  recovery  of  the  estate,  that  would  be  done 
indirectly  which  the  law  does  not  permit  to  be  done  directly,  and  the 
great  purpose  of  the  law  in  avoiding  such  contracts — the  protection 
of  those  who  cannot  protect  themselves — defeated."  ^"'^ 

As  we  have  already  seen,  however,  most  courts  do  not  allow  an  in- 
sane person  to  avoid  his  contracts  where  the  other  party  acted  in  good 
faith,  and  in  ignorance  of  his  insanity,  and  cannot  be  placed  in  statu 
quo.  Where  this  doctrine  prevails,  if  the  contract  was  made  in  good 
faith  and  without  knowledge  of  the  insanity,  the  right  to  avoid  is  con- 
ditional on  return  of  the  consideration.^"* 

Avoidance  as  against  Third  Persons. 

The  fact  that  third  persons  have  acquired  an  interest  under  the  con- 
tract of  a  person  non  compos  mentis,  in  good  faith,  for  value,  and 
without  notice  of  his  infirmity,  cannot  defeat  his  right  to  avoid  the 

203  Beverley's  Case,  4  Coke,  123b;  Campbell  v.  Kubn,  45  Mich.  513,  8  N. 
W,  523,  40  Am.  Rep.  479;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705; 
SchufE  V.  Ransom,  79  Ind.  458;   Orr  v.  Mortgage  Co.,  107  Ga.  499,  33  S.  E.  708. 

204Allis  V.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744;  Scliuff  v.  Ran- 
som, 79  Ind.  458. 

205  Carrier  v.  Sears,  4  Allen  (Mass.)  336,  81  Am.  Dec.  707;  Allen  v.  Berry- 
hlll,  27  Iowa,  534,  1  Am.  Rep.  309 ;  ante,  p.  1G2.  Contra,  Burke  v.  Allen,  29  N. 
H.  106,  61  Am.  Dec.  642.  Sureties  are  liable  on  a  note  executed  by  an  insane 
person.  Lee  v.  Yandell,  G9  Tex.  34,  6  S.  W.  665.  Only  privies  in  blood  or  legal 
representatives  can  avoid.  Hunt  v.  Rabitoay,  125  Mich.  137,  Si  N,  W.  59,  84 
Am.  St.  Rep.  563. 

206  Gibson  v.  Soper,  6  Gray  (Mass.)  283.  66  Am.  Dec.  414;  Arnold  v.  Iron 
Works,  1  Gray  (Mass.)  434;  Whitcomb  v.  Hardy,  73  Minn.  285,  76  N.  W.  29. 
Cf.  Beasley  v.  Beasley,  ISO  111.  163,  54  N.  E.  187.  Disaffirmance  by  action  to 
avoid.  Hull  v.  Louth,  109  Ind.  315,  10  N.  E.  270,  58  Am.  Rep.  405;  Ashmead 
v.  Reynolds,  127  Ind.  441,  26  N.  E.  80. 

20  7  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414.    See,  also,  Hovey 
v.  Hobson,  53  Me.  453,  89  Am.  Dec.  705. 
208  Cases  cited  supra,  note  183. 


186  CAPACITY  OF   PARTIES.  (Cll.  6 

contract.^"®  This  rule  applies  to  deeds  ^^°  and  negotiable  instru- 
ments ^^^  as  well  as  to  other  contracts,  and  it  applies  whether  the  con- 
tract be  regarded  as  void  or  merely  voidable.  To  protect  bona  fide  pur- 
chasers in  such  cases  would  be  to  withdraw  protection  from  the  in- 
sane person. 

DRUNKEN  PERSONS. 

122.  A  contract  made  by  a  person  iirliile  lie  is  so  drunk  as  to  be  inca- 

pable of  understanding  its  nature  and  effect  is  voidable  at  bis 
option,  except  tbat— 
EXCEPTIONS— He    is    liable    on    contracts    created   by   law,    or   quasi 
contracts. 

123.  Tbe  rules  as  to  ratification  and  avoidance  are  substantially  tbe 

same  as  in  the  case  of  infants  and  insane  persons,  except  tbat 
some  (but  not  all)  courts  bold  tbat  tbe  contract  cannot  be 
avoided  as  against  a  bona  fide  purchaser. 

The  modern  law  places  a  drunken  person,  in  respect  of  his  capacity 
to  contract,  in  the  same  position  as  an  insane  person.  If  his  drunken- 
ness is  so  excessive  as  to  render  him  incapable  of  comprehending  the 
nature  and  effect  of  his  contract,  it  is  voidable  at  his  option,  and  it  is 
immaterial  that  his  drunkenness  was  voluntary,  and  not  procured 
through  the  circumvention  of  the  other  party.^^^  In  the  absence  of 
fraud,  slight  intoxication  does  not  aft'ect  the  validity  of  a  contract.     It 

209  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Hull  v.  Louth,  109  Ind. 
315,  10  N.  E.  270,  58  Am.  Rep.  405;  Long  v.  Fox,  100  111.  43;  Rogers  v.  Black- 
well,  49  Micli.  192,  13  N.  W.  512. 

210  Rogers  V.  Blackwell,  49  Mich.  192,  13  N.  W.  512.  In  North  Carolina 
it  is  held  that  the  deed  of  a  lunatic,  duly  recorded,  cannot  be  avoided  as 
against  bona  fide  purchasers.  Odom  v.  Riddick,  104  N.  C.  515,  10  S.  E.  609, 
7  L.  R.  A.  118,  17  Am.  St.  Rep.  686. 

211  Sentance  v.  Pool,  3  0.  &  P.  1 ;  Anglo-Californian  Bank  v.  Ames  (C.  C.) 
27  Fed.  727;  Wirebach's  Ex'r  v.  Bank,  97  Pa.  543,  39  Am.  Rep.  821;  McClain 
V.  Davis,  77  Ind.  419. 

212  BARRETT  v.  BUXTON,  2  Aikens  (Vt.)  167,  16  Am.  Dec.  691;  Carpen- 
ter V.  Rodgers,  61  Mich.  384,  28  N.  W.  156,  1  Am.  St.  Rep.  595;  Miller  v.  Fin- 
ley,  26  Mich.  254,  12  Am.  Rep.  306;  Gore  v.  Gibson,  13  Mees.  &  W.  623; 
Coulkins  v.  Fry,  35  Conn.  170;  Johns  v.  Fritchey,  39  Md.  258;  Bush  v.  Breinig, 
113  Pa.  310,  6  Atl.  86,  57  Am.  Rep.  469;  Foss  v.  Hildi-eth,  10  Allen  (Mass.) 
76;  Matthews  v.  Baxter,  L.  R.  8  Exch,  132;  Shackelton  v.  Sebree,  86  111.  616; 
Bates  Y.  Ball,  72  111.  108;  Mansfield  v.  Watson,  2  Iowa,  111;  Warnock  v. 
Campbell,  25  N.  J.  Eq.  485;  French's  Heirs  v.  French,  8  Ohio,  214,  31  Am. 
Dec.  441;  Cummings  v.  Henry,  10  Ind.  109;  Reynolds  v.  Waller's  Heirs,  1 
Wash.  (Va.)  164;  Newell  v.  Fisher,  11  Smedes  &  M.  (Miss.)  431;  Broadwater 
V.  Dame,  10  Mo.  277;  Phelan  v.  Gardner,  43  Cal.  306.  But  see  Reiuskopf  v. 
Rogge,  37  Ind.  207.  In  Hunter  v.  Tolbard,  47  W.  Va.  258,  34  S.  E.  737,  it  Is 
held  that  the  contract  is  void.    It  has  been  held  that  a  person  who,  when  so- 


§§  122-123)  DRUNKEN    PEKSONS.  187 

must  be  so  excessive  as  to  render  him  incapable  of  knowing  what  he 
is  doing.^^^  The  contract,  though  voidable  at  the  option  of  the  drunk- 
en person,  is  binding  on  the  other  party,  and  cannot  be  attacked  by 
third  persons.^^*  By  the  weight  of  authority,  if  a  person  has  been 
judicially  declared  incapable  of  conducting  his  own  affairs  by  reason  of 
habitual  drunkenness,  and  has  been  put  in  the  custody  and  under  the 
control  of  a  committee  or  guardian,  his  contracts  are  absolutely  void.^^" 

A  person  who  was  drunk,  but  not  under  guardianship,  when  he  en- 
tered into  a  contract,  may  either  avoid  or  ratify  it  when  sober  ;^^®  and 
ratification  or  disaffirmance  may  be  by  conduct  showing  an  intention  to 
ratify  or  to  avoid  it,  as  by  retention  of  the  consideration,  after  be- 
coming sober,  or  failure  to  disaffirm  for  an  unreasonable  time.^^' 
Having  ratified  the  contract,  he  cannot  retract  and  avoid  it.^^^  On 
avoidance  he  must  return  or  offer  to  return  the  consideration  received 
by  him,^^®  though,  if  the  consideration  were  wasted  before  becoming 
sober,  this  would  probably  not  be  required. ^^"^ 

A  drunken  person  is  liable  on  contracts  created  by  law,  or  quasi  con- 
tracts, and  is  liable  for  necessaries  furnished  him.^^^ 

As  to  whether  drunkenness  is  a  defense  against  persons  in  good 
faith  acquiring  rights  for  value  under  the  contract, — as,  for  instance, 
against  the  bona  fide  holder  of  a  negotiable  instrument, — the  authori- 


ber,  agrees  to  sign  a  contract,  cannot  avail  himself  of  intoxication  at  the 
time  of  signatm-e  as  a  defense.  Page  v.  Krekey,  63  Hun,  629,  17  N.  Y.  Supp. 
764.    Cf.  Youn  v.  Lament,  56  Minn.  216,  57  N.  W.  478. 

213  Van  Wyck  v.  Brasher,  81  N.  Y.  260;  Conley  v.  Nailor,  118  U.  S.  127,  6 
Sup.  Ct.  1001,  30  L.  Ed.  112;  Willcox  v.  Jackson,  51  Iowa,  208,  1  N.  W.  513: 
Van  Horn  v.  Keenan,  28  111.  445 ;  Peck  v.  Gary,  27  N.  Y,  9,  84  Am.  Dec.  220 : 
Wright  V.  Waller,  127  Ala.  557,  29  South.  57,  54  L.  R.  A.  440.  And  see  cases 
cited  in  preceding  note. 

214  Matthews  v.  Baxter,  L.  R.  8  Exch.  132;  Eaton's  Adm'r  v.  Perry,  29  Mo. 
96. 

215  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388,  59  Am.  Dec.  499.  Contra,  Appeal 
of  Donehoe  (Pa.  Sup.)  15  Atl.  924.  This  is  true  even  of  a  negotiable  instru- 
ment in  the  hands  of  a  bona  fide  purchaser  for  value.  Wadsworth  v.  Sharp- 
steen, supra.  This  does  not  apply  to  contracts  for  necessaries.  McCrillis  v. 
Bartlett,  8  N.  H.  569. 

2i«  See  cases  cited  in  note  212,  supra.  It  may  be  avoided  by  his  personal 
I'epresentatives.  Wigglesworth  v.  Steers,  1  Hen.  &  M.  (Va.)  70,  3  Am.  Dec. 
602. 

21T  Williams  v.  Inabet,  1  Bailey  (S.  C.)  343;  Reinskopf  v.  Rogge,  37  Ind. 
207;  Smith  v,  Williamson,  8  Utah,  219,  30  Pac.  753;  Mansfield  v.  Watson,  2 
Iowa,  111. 

218  Matthews  v,  Baxter,  L.  R.  8  Exch.  132;  Joest  v.  Williams,  42  Ind.  565, 
13  Ajb.  Rep.  377. 

219  Joest  V.  Williams,  42  Ind.  565,  13  Am.  Rep.  377. 

220  Thackrah  v.  Haas,  119  U.  S.  4'J9,  7  Sup.  Ct.  311,  30  L.  Ed.  486. 

221  Gore  V.  Gibson,  13  Mees.  &  W.  023;    McCrillis  v.  Bartlett,  8  N.  H.  569. 


188  CAPACITY   OF   PARTIES.  (Ch.  6 

ties  are  conflicting.  Some  courts  hold  that  total,  but  not  partial,  drunk- 
enness, is  a  defense ;  while  others  hold  that  not  even  total  drunkenness 
is  a  defense.^^' 

MARItlBD  WOMEN. 

124.  At  common  lax^,  as  a  rule,  a  married  tvomaiL,  dnring  ooTeTtnre, 
is  incapable  of  contracting,  and  can  incur  no  contractual  obli- 
gation. 

EXCEPTIONS  AT  COMMON  LAW— (a)  If  the  husband  is  civilly 
dead. 

(b)    If  the  husband  has  deserted  his  -wife,  and  left  the  state. 

EXCEPTIONS  IN  EQUITY— (c)  In  equity  a  married  woman  may  have 
a  separate  estate,  and  contract  in  reference  thereto  as  a  feme 
sole. 

EXCEPTIONS  BY  STATUTE— (d)  In  most  jurisdictions,  the  common- 
law  disabilities  of  married  w^omen  have  been  virtually  removed 
by  statute. 

At  common  law,  as  a  rule,  a  married  woman  is  without  capacity  to 
enter  into  a  valid  contract.  Her  contracts  are  absolutely  void.^^'  It 
makes  no  difference  whether  she  is  living  with  her  husband  or  not.^^* 
An  agreement  of  separation,  for  instance,  by  which  the  husband  has 
secured  to  his  wife  a  separate  maintenance,  it  is  said,  cannot  change 
their  legal  relationship  so  as  to  render  her  liable  on  her  contracts;  ^-'^ 
nor  can  the  fact  that  a  wife  has  deserted  her  husband,  and  is  living  1 
in  adultery,  render  her  liable.^^'     Even  a  divorce  a  mensa  et  thoro  does  ' 

222  State  Bank  v.  McCoy,  69  Pa.  204,  8  Am.  Rep.  246;  McSparran  v.  Neeley, 
91  Pa.  17;  Smith  v.  Williamson,  8  Utah,  219,  30  Pac.  753.  See  Norton,  Bills 
&  N.  (3d  Ed.)  232. 

223  Jackson  v,  Vanderheyden,  17  Johns.  (N.  Y.)  167,  8  Am.  Dec.  378;  Mar- 
tin v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;  Smith  v.  Plomer,  15  East, 
607 ;  Manby  v.  Scott,  2  Smith,  Lead.  Cas.  375 ;  Mackinley  v.  McGregor,  3 
Whart.  (Pa.)  369,  31  Am.  Dec.  522;  Tracy  v.  Keith,  11  Allen  (Mass.)  214;  Mor- 
ris V.  Norfolk,  1  Taunt.  212;  Musick  v.  Dodson,  76  Mo.  624,  43  Am.  Eep.  780; 
Dobbin  v.  Hubbard,  17  Ark.  189,  65  Am.  Dec.  425;  Palmer  v.  Oakley,  2  Doug. 
(:Mich.)  433,  47  Am.  Dec.  41;  Hollis  v.  Francois,  5  Tex.  195,  51  Am.  Dec.  760; 
Stevens  v.  Parish,  29  Ind.  260,  95  Am.  Dec.  636;  Burton  v.  Marshall,  4  Gill 
(Md.)  487,  45  Am.  Dec.  171;  HAYWARD  v.  BARKER,  52  Vt.  429,  36  Am. 
Rep.  762 ;  Porterfield  v.  Butler,  47  Miss.  165,  12  Am.  Rep.  320  ;  Caldwell  v.  Wal- 
ters, 18  Pa.  79,  55  Am.  Dec.  592;  Pond  v.  Carpenter,  12  Minn.  430  (Gil.  315); 
Fan-ar  v.  Bessey,  24  Vt.  89;  Howe  v.  Wildes,  34  Me.  566;  Young  v.  Paul, 
10  N.  J.  Eq.  404,  64  Am.  Dec.  456;  Tucker  v.  Cocke,  32  Miss.  184;  Thompson 
V.  Warren,  8  B.  Mon.  (Ky.)  488.    And  see  cases  cited  in  Ewell,  Lead.  Cas.  312. 

224  Harris  v.  Taylor,  3  Sneed  (Term.)  536,  67  Am.  Dec.  576.  Conti'a;  Love 
V.  Moynehan,  16  111.  277,  63  Am.  Dec.  306. 

225  Marshall  v.  Rutton,  8  Term  R.  545. 

226  MEYER  v.  HAWORTH,  8  Adol.  &  E.  467. 


§  124)  MARRIED    WOMEN.  189 

not  give  a  woman  power  to  bind  herself  by  contract  at  common  law,^^^ 
though  this  is  very  generally  changed  by  statute. 

As  a  rule,  a  married  woman  is  liable  for  her  torts,  including  her 
frauds,  and  may  be  sued  in  respect  of  such  acts,  jointly  with  her  hus- 
band, or  separately  if  she  survives  him ;  but,  as  in  the  case  of  infants, 
she  cannot  even  be  sued  for  her  fraud  where  it  is  directly  connected  with 
her  contract,  and  is  part  of  the  same  transaction,  though  it  is  otherwise 
if  the  fraud  is  not  connected  with  her  contract.*^^  False  represen- 
tations by  a  married  woman  that  she  is  unmarried,  or  a  widow,  to 
induce  a  person  to  contract  with  her,  will  not  estop  her  from  pleading 
her  coverture  when  sued  upon  the  contract,  though,  like  an  infant  under 
similar  circumstances,  she  would  no  doubt  be  liable  in  an  action  for 
deceit  ^^® 

Exceptions — At  Common  Law. 

At  common  law  a  married  woman  may  acquire  contractual  rights  by 
reason  of  personal  services  rendered  by  her,  or  by  reason  of  the  assign- 
ment or  execution  to  her  of  a  chose  in  action,  such  ^s  a  bond  or  note.^^" 
The  husband  may  reduce  to  his  possession  the  rights  so  accruing  to-^ 
his  wife;  but,  unless  he  does  this  by  some  act  indicating  an  intention 
to  deal  with  them  as  his  own,  they  do  not  pass,  like  other  personalty 
of  the  wife,  into  the  estate  of  the  husband,  but  survive  to  the  wife 
if  she  outlives  him,  or  pass  to  her  personal  representatives  if  she  dies 
in  his  lifetime. 

The  wife  of  a  man  who  was  civilly  dead  by  reason  of  his  being 
under  conviction  of  a  felony  had  the  same  capacity  to  contract  as  a 
feme  sole.^'^  The  old  common-law  doctrine  of  civil  death  from  con- 
viction of  a  felony,  however,  is  not  recognized  in  this  country ;  but 
there  are,  in  some  states,  statutes  declaring  that  a  man  who  is  under  a 
sentence  of  imprisonment  in  the  penitentiary  for  life  shall  be  deemed 
civilly  dead. 


227  Faithome  v.  Blaquire,  6  Maule  &.  S.  73;  Lewis  v.  Lee,  8  Bam.  &  C. 
291.  Contra,  Dean  v.  Richmond,  5  Picli.  (Mass.)  461;  Pierce  v.  Burnham, 
4  Mete.  (Mass.)  303. 

22  8  Lealje,  Cont.  235;  Liverpool  Adelphi  Loan  Ass'n  v.  Fairliurst,  9  Esch. 
422;    Wright  v.  Leonard,  11  C.  B.  (N.  S.)  258. 

»2  9  Cannam  v.  Farmer,  3  Bxch.  698;  Liverpool  Adelphi  Loan  Ass'n  v. 
Fairhurst,  9  Exch.  422;    Wi'ight  v.  Leonard,  11  C.  B.  (N.  S.)  258. 

2  30  Stevens  v.  Beals,  10  Cush.  (Mass.)  291,  57  Am.  Dec.  108;  Cobb  v.  Duke, 
86  Miss.  60,  72  Am.  Dec.  157. 

231  Co.  Litt  132b;  Hatchett  v.  Baddeley,  2  W.  Bl.  1079,  1082;  Carrol  v. 
Blencovr,  4  Esp.  27.  Civil  death  arose  formerly  in  England  also  from  out- 
lawry. As  to  other  exceptions  not  material  In  this  country,  see  Anson,  Cont. 
(Sth  Ed.)  122 ;  Pollock,  Cont.  (3d  Ed.)  80.  As  to  agreements  of  separation,  see 
Tiffany,  Pers.  &  Dom.  liel.  168. 


190  CAPACITY  OF  PARTIES.  (Ch.  6 

Where,  however,  a  husband  deserts  his  wife  absohitely  an5  com- 
pletely, and  leaves  the  state,  it  is  generally  held  in  this  country  that 
the  wife  may  contract  and  sue  and  be  sued  as  a  feme  sole.'^^'' 

Same — In  Equity. 

In  equity  a  married  woman  may  have  property  settled  upon  her  tO' 
her  separate  use,  in  which  case  she  may  dispose  of  it  in  the  same 
manner  as  if  she  were  a  feme  sole.  In  the  exercise  of  this  right,  she 
may  charge  it  with  the  Hability  to  satisfy  contracts  made  by  her ;  and 
an  engagement  or  security  entered  into  by  her,  showing  an  intention 
to  charge  her  separate  property,  will  have  that  effect.^^^  As  said  in 
an  English  case :  "Courts  of  equity  have,  through  the  medium  of 
trusts,  created  for  married  women  rights  and  interests  in  property, 
both  real  and  personal,  separate  and  independent  of  their  husbands. 
To  the  extent  of  the  rights  and  interests  thus  created  a  married  woman 
has,  in  courts  of  equity,  power  to  alienate,  to  contract,  to  enjoy.  She 
is  considered  a  feme  sole  in  respect  of  property  thus  settled  or  secured 
to  her  separate  use.*'  ^^*  It  is  presumed  in  general  that  a  contract  or 
engagement  made  by  a  married  woman  in  writing  imports  an  intention 
to  charge  her  separate  estate,  otherwise  the  writing  would  have  no 
meaning.  If  not  in  writing,  it  must  be  proved  that  the  engagement 
was  entered  into  with  such  an  intention.^^^  Under  this  rule,  bonds, 
bills  of  exchange,  and  promissory  notes  of  a  married  woman  are  pre- 
sumptively payable  out  of  her  separate  estate.^^®     It  is  very  generally 

232  Gregory  v.  Pierce,  4  Mete.  (Mass.)  478;  Mead  v.  Hughes'  Adm'r,  15  Ala,. 
141,  1  Am.  Rep.  123;  Krebs  v.  O'Grady,  23  Ala.  726,  58  Am.  Dec.  312;  Cheek 
V.  Bellows,  17  Tex.  613,  67  Am.  Dec.  6S6.  See  Kogers  v.  Phillips,  8  Ark.  366, 
47  Am.  Dec.  727.  See  Mete.  Cont.  98  et  seq.  A  married  woman  whose  hus- 
band is  an  alien,  and  has  never  been  in  the  United  States,  is  liable  on  her 
contracts.    Levi  v.  Marsha,  122  N.  C.  565,  29  S.  E.  832. 

233  See  Hulme  v.  Tenant,  1  Brown,  Ch.  16;  Shattock  v.  Shattock,  L.  R.  2 
Eq.  182;  Jaques  v.  Methodist  Church,  17  Johns.  (N.  Y.)  549,  8  Am.  Dec.  447; 
Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;  Hollis  v.  Francois, 
5  Tex.  195;  Bradford  v.  Greenway,  17  Ala.  797,  52  Am.  Dec.  203;  Dobbin  v. 
Hubbard,  17  Ark.  189,  65  Am.  Dec.  425;  Rogers  v.  Ward.  8  Allen  (:Mass.)  387, 
85  Am.  Dec.  710;  Smith  v.  Thompson,  2  MacArthur  (D.  C.)  291;  Priest  v. 
Cone,  51  Vt  495,  31  Am.  Rep.  695;  Willard  v.  Eastham,  15  Gray  (Mass.)  328, 
79  Am.  Dec.  360;  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142; 
Burch  V.  Breckenridge,  16  B.  Mon.  (Ky.)  482.  63  Am.  Dec.  553;  Kantrowitz  v. 
Prather,  31  Ind.  92,  99  Am.  Dec.  587;  Phillips  v.  Graves,  20  Ohio  St.  371,  5 
Am.  Rep.  675;  Baker  v.  Gregory,  28  Ala.  544,  65  Am.  Dec.  366.  See  Tiffany, 
Pers.  &  Dom.  Rel.  131  et  seq. 

234  Johnson  v.  Gallagher,  3  De  Gex,  P.  &  J.  494. 

288  Leake,  Cont.  238;  Kantrowitz  v.  Prather,  31  Ind.  92,  99  Am.  Dec.  587j 
Burch  V.  Breckenridge,  16  B.  Mon.  (Ky.)  482,  63  Am.  Dec.  553;  Litton  v. 
Baldwin,  8  Humph.  (Tenn.)  209,  47  Am.  Dec.  605;  Johnson  f.  Cummins,  16 
N.  J.  Eq.  97,  84  Am.  Dec.  142. 

236Tullett  v.  Armsti-ong,  4  Beav.  319;    Phillips  v.  Graves,  20  Ohio  St  371, 


§§  125-128)  CORPORATIONS.  191 

held  that,  where  a  debt  contracted  by  a  married  woman  is  for  the  benefit 
of  her  separate  estate,  it  will  be  chargeable  in  equity  for  the  payment 
thereof,  without  regard  to  her  intention. ^^'' 

There  are  some  limitations  on  the  power  of  a  married  woman  in 
respect  to  her  separate  property  which  should  be  noticed.  She  cannot 
sue  or  be  sued  alone  in  respect  of  the  separate  estate.  She  does  not 
acquire  a  sort  of  equitable  status  of  capacity  to  contract  debts  in  respect 
of  her  separate  estate,  without  regard  to  when  it  is  acquired.  She 
can  only  bind  such  separate  estate  as  is  in  her  possession  or  control 
at  the  time  the  liabilities  accrue.  She  cannot  bind  herself  nor  create 
liabilities  in  excess  of  her  estate.  Her  creditor's  remedy  is  not  against 
her,  but  against  her  property. ^^® 

Same — Disability  Removed  by  Statute.  , 

The  common  law  has  of  late  years  been  almost  universally  changed 
by  statutes  both  in  this  country  and  in  England.  The  statutes  vary  so 
much  in  the  different  states  that  it  would  be  impracticable  to  attempt 
to  state  the  law. 

CORPORATIONS. 

125.  A  corporation,  by  reason  of  its  artificial  natnre,  can  only  con- 

tract througli  a  duly-authorized  agent. 

126.  Formerly,  \rith   certain  exceptions,  it  could  only  contract  under 

its  corporate  seal;  but  noinr,  unless  restricted  by  its  charter  or 
by  statute,  it  may  contract  in  the  same  manner  as  a  natural 
person. 

127.  The  power  of  a  corporation  to  enter  into  a  contract  is  limited  in 

respect  of  the  subject-matter  only  by  its  charter  or  act  of  in- 
corporation or  by  other  statutes  binding  on  it.  Except  as  so 
restricted,  it  has  the  implied  pow^er  to  enter  into  any  contract 
Trhich  is  reasonably  incidental  to  the  accomplishment  of  the 
objects  for  xp^hich  it  is  created. 


5  Am.  Rep.  675;  Biirch  v.  Breckenridge,  16  B.  Mon.  (Ky.)  482,  63  Am.  Dec. 
553;  Dobbin  v.  Hubbard,  17  Ark.  189,  65  Aifi.  Dec.  425;  Rogers  v.  Ward,  8 
Allen  (Mass.)  387,  85  Am.  Dec.  710. 

237  Willard  v.  Eastham,  15  Gray  (Mass.)  328,  79  Am.  Dec.  366;  Rogers  v. 
Ward,  8  Allen  (Mass.)  387,  85  Am.  Dec.  710;  James  v.  Mayrant,  4  Desaus. 
Eq.  (S.  G.)  591,  6  Am.  Dec.  630;  Yale  v.  Dederer,  22  N.  Y.  450,  78  Am.  Dec. 
216;  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Dyett'v.  Coal  Co., 
20  Wend.  (N.  Y.)  570,  32  Am.  Dec.  598;  Dale  v.  Robinson,  51  Vt.  20,  31  Am. 
Rep.  669;  Patrick  v.  Llttell,  36  Ohio  St.  79,  38  Am.  Rep.  552;  McCoriBick  v. 
Holbrook,  22  Iowa,  487,  92  Am.  Dec.  400.  Liability-  for  medical  attendance 
and  funeral  expenses.  McClellan  v.  Filson,  44  Ohio  St.  184,  5  N.  K.861,  58 
Am.  Rep.  814. 

23  8  Pipard  V.  Hire,  5  Ch.  App.  277. 


192  CAPACITY  OF   PARTIES,     n  \D  .   (Ch.  6 

128.  An  attempted  contract,  inrliicli  is  not  within  tlie  poxrers  of  a  cor- 
poration, is  said  to  be  ultra  vires,  and  in  many  jurisdictions  is 
held  to  be  void,  so  that  it  cannot  be  enforoedi  but  in  otber  juris- 
dictions tlie  defense  of  ultTja  vires  is  excluded  ivben  the  contract 
Has  been  performed  by  the  party  seeking  to  enforce  it,  and  it 
would  be  inequitable  to  allow  the  defense. 

A  corporation  can  contract  only  by  means  of  an  agent.  It  "cannot 
act  in  its  own  person,  for  it  has  no  person."  ^^^  It  cannot  act  through 
one  or  any  number  of  its  members,  merely  as  such,  for,  though  they 
compose  the  corporation,  they  are  not  the  corporation.  It  must  act 
through  an  agent  expressly  authorized  to  act  for  it.^*° 

Mode  of  Contracting — Seal. 

It  was  formerly  the  rule,  subject  to  some  exceptions,  that  a  corpo- 
ration could  manifest  its  intention  and  act  only  by  the  use  of  its  corpo- 
rate seal ;  **^  but  this  doctrine  is  no  longer  recognized  in  this  country. 
Unless  the  charter  or  act  of  incorporation  or  some  statute  provides 
otherwise,  it  need  only  use  a  seal  where  an  individual  would  be  required 
to  use  one.  In  all  cases  where  it  is  not  expressly  so  restricted,  it  may, 
like  a  natural  person,  contract  under  seal,  or  by  writing  not  under  seal, 
or  orally. ^*^  Like  a  natural  person,  also,  it  can  ratify  any  contract 
made  by  an  agent  which  it  could  have  authorized  the  agent  to  make,^*^ 
and  it  may  be  liable  on  contracts  implied  as  a  fact  from  corporate 
acts,^**  and  on  quasi  contractual  obligations.^*"* 

If  the  charter  or  act  of  incorporation,  or  any  other  statute,  expressly 
prescribes  a  certain  mode  or  form  for  entering  into  contracts,  as  is 
frequently  the  case,  that  form  and  mode  must  be  strictly  followed. 


246 


280  Per  Lord  Cairns,  in  Ferguson  v.  Wilson,  2  Ch.  99. 

240  Anonymous,  12  Mod.  423;  Bank  of  Ireland  v.  Evans  Charities,  5  H.  L. 
Cas.  389. 

241  1  Bl.  Comm.  475;   Church  v.  Gas  Co.,  6  Adol.  &  E.  846. 

242  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  3  I^  Ed.  351;  Bank  of 
the  United  States  v.  Dandridge,  12  Wheat.  64,  6  L.  Ed.  552;  Topping  v.  Bick- 
ford,  4  Allen  (Mass.)  120;  Goodwin  v.  Screw  Co.,  34  N.  H.  378;  Pixley  v. 
Eailroad  Co.,  33  Cal.  183,  91  Am.  Dec.  623;  Regents  of  University  of  Michi- 
gan V.  Society,  12  Mich.  138;  Board  of  Education  of  Illinois  v.  Greenbaum,  39 
111.  609;  Mott  V.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550;  Trustees  of 
Christian  Church  of  Wolcott  v.  Johnson,  53  Ind.  273;  Clark,  Corp.  156. 

24S  Peterson  v.  Mayor,  etc.,  17  N.  Y.  450. 

244  Proprietors  of  the  Canal  Bridge  v.  Gordon,  1  Pick.  (Mass.)  297,  11  Am. 
Dec.  170 ;   Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  3  L.  Ed.  351. 

24  6  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  3  L.  Ed.  351;  Hall 
V.  Mayor  of  Swansea,  5  Q.  B.  526;  Jelferys  v.  Gurr,  2  Barn.  &  Adol.  833; 
Seagraves  v.  City  of  Alton,  13  111.  366;  Trustees  of  Cincinnati  Tp.  v.  Ogden, 
5  Ohio,  23. 

240  Head  v.  Insurance  Co.,  2  Cranch,  127,  at  page  169,  2  L.  Ed.  229;  BiBsell 
V.  Spring  Valley  Tp^  110  U.  S.  102,  3  Sup.  Ct.  555,  28  L.  Ed.  105. 


§§  125-128)  CORPORATIONS.  193 

The  statutory  provision,  however,  must  be  mandatory,  and  not  merely 
directory.^  *^ 

What  Contracts  are  Authorized. 

The  power  of  a  corporation  to  enter  into  contracts  is  limited,  in 
respect  of  the  matter  of  the  contract,  by  the  charter  or  act  of  incorpo- 
ration, and  by  other  statutes  binding  upon  it.  Being  a  creature  of  the 
legislature,  it  may  make  only  such  contracts  as  are  expressly  or  im- 
pliedly authorized  by  the  legislature.  It  exists  for  no  other  purpose, 
and  has  no  greater  powers,  than  are  conferred  by  its  creation. 

By  implication  a  corporation  is  given  power,  in  the  absence  of  expressi- 
restriction  in  its  charter,  to  enter  into  any  contract  which  is  necessary 
and  usual  in  the  course  of  business,  or  reasonably  incident  to  the  ac- 
complishment of  the  objects  for  which  it  was  created.^** 

To  borrow  money  for  carrying  on  its  business,  and  to  give  a  mort- 
gage to  secure  its  debts,  to  receive  or  give  negotiable  paper,  to  buy 
and  sell  land,  are  all  acts  within  the  power  of  the  corporation  if  it  is 
acting  within  its  proper  sphere,  and  in  carrying  out  the  purposes  for 
which  it  was  incorporated;  but  not  otherwise.^** 

Ultra  Vires  Contracts. 

A  contract  made  by  a  corporation  ultra  vires — that  is,  beyond  the 
powers  of  the  corporation  executing  it — is  in  many  jurisdictions  held  to 
be  void,  so  that  no  action  can  be  brought  upon  it.^°°  In  many  states, 
on  the  other  hand,  the  defense  of  ultra  vires  is  in  such  cases  excluded, 
whether  interposed  for  or  against  the  corporation,  on  the  ground 
of  an  equitable  estoppel,  when  the  contract  has  been  wholly  or  partly 
performed  on  the  part  of  the  plaintiff,  and  it  would  be  inequitable  to 
allow  the  defense.^^^  And  as  a  rule,  in  all  jurisdictions,  where  either 
party  has  received  benefits  under  the  contract  in  the  form  of  money, 
property,  or  services,  an  action  quasi  ex  contractu  may  be  maintained 

247  Soutliern  Life  Ins.  Co.  v.  Lanier,  5  Fla.  110,  58  Am.  Dec.  448;  Witte  v. 
Fishing  Co.,  2  Conn.  260;   Bulldey  v.  Same,  2  Conn.  252,  7  Am.  Dec.  271. 

248  MORVILLE  V.  SOCIETY,  123  Mass.  129,  25  Am.  Rep.  40;  Union  Bank 
V.  Jacobs,  6  Hnmph.  (Tenn.)  515;  London  &  N.  W.  Ry.  Co.  v.  Price,  11  Q. 
B.  D.  485;  Simpson  v.  Hotel  Co.,  8  H.  L.  Cas.  712;  Ft.  Worth  City  Co.  v. 
Bridge  Co.,  151  U.  S.  294,  14  Sup.  Ct.  339,  38  L.  Ed.  167. 

24  9  Clark,  Corp.  183  et  seq. 

2R0  East  Anglian  Rys.  Co.  v.  Railway  Co.,  11  C.  B.  775;  Directors,  etc.,  of 
Ashbury  Railway  Carriage  &  Iron  Co.  v.  Riche,  L  R.  7  H.  L.  653;  Pearce 
V.  Railroad  Co.,  21  How.  441,  16  L.  Ed.  184;  Thomas  v.  Railroad  Co.,  101 
U.  S.  71,  25  L.  Ed.  950;  Central  Transp.  Co.  v.  Car  Co.,  139  U.  S.  24.  11  Sup. 
Ct  478,  35  L.  Ed.  55;  California  Nat  Bank  v.  Kennedy,  167  U.  S.  362,  17 
Sup.  Ct.  831,  42  L.  Ed.  198. 

251  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62,  20  Am.  Rep.  504;  Holmes  & 
Griggs  Mfg.  Co.  v.  Metal  Co..  127  N.  Y.  252,  27  N.  E.  831,  24  Am.  St  Rep. 
448;  Denver  Fire  Ins.  Co.  v.  McClelland,  9  Colo,  11,  9  Pac.  771,  59  Am.  Rep. 
Clark  Cont.  (2d  Ed,)— 13 


194  CAPACITY  OF  PARTIES.  (Ch.  6 

to  recover  if'  A  discussion  of  the  law  of  corporations  in  relation 
to  contracts  is,  however,  beyond  the  scope  of  this  book.'^" 

134;  Bradley  v.  Ballard,  55  111.  413,  8  Am.  Rep.  656;  Day  v.  Buggy  Co.,  57 
ailch.  151,  23  N.  W.  628,  58  Am.  Rep.  352;  Wright  v.  Hughes,  119  Ind.  324, 
21  N.  E.  907,  12  Am.  St.  Rep.  412;  Seymour  v.  Society,  54  Minn.  147,  55  N.  W. 
907;  Manchester  &  L.  R.  Co.  v.  Railroad  Co.,  66  N.  H.  100,  20  Atl.  383,  9  L. 
R.  A.  689,  49  Am.  St  Rep.  582;  Union  Hardware  Co.  v.  Manufacturing  Co., 
58  Conn.  219,  20  Atl.  455. 

2  62  Day  V.  Buggy  Co.,  57  Mich.  146,  23  N.  W.  628,  58  Am.  Rep.  352;  Davis 
V.  Railroad  Co.,  131  Mass.  258,  41  Ain.  Rep.  221;  Logan  County  Nat  Bank  v. 
Townsend,  139  U.  S.  67,  11  Sup.  Ct  496,  35  L.  Ed.  107;  Nashua  &  L.  R.  Corp. 
V.  Railroad  Corp.,  164  Mass.  222,  41  N.  E.  268,  49  Am.  St  Rep.  454;  Anthony 
V.  Machine  Co.,  16  R.  I.  571,  18  Atl.  176,  5  L.  R,  A.  575;  Moore  v.  Tanning 
Co.,  60  Vt.  459,  15  Atl.  114. 

2  63  See  Clark,  Corp.  170  et  seq. 


§  129)  EEALITY   OF   CONSENT.  195 

CHAPTER  Vn. 

REALITY  OF  CONSENT. 

129.  In  General. 

130-131.  Mistake. 

132-134-  Effect— Remedies. 

135-138.  Misrepresentation. 

139.  Fraud. 

140-141.  Effect— Remedies. 

142-144.  Duress. 

145-146.  Undue  Influence. 

IN  GENCRAIt. 

129.  Tlie  mutual  eoiLsent  'whicli  is  esseiLtia.1  to  every  agreement  must 
be  real.  There  may  be  no  real  consent,  and  tlierefore  no  con- 
tract, because  of 

(a)  Mistake, 

(b)  Misrepresentation, 

(c)  Fraud, 

(d)  Duress,  or 

(e)  Undue  influence. 

The  next  feature  in  the  formation  of  contract  to  be  considered  is 
genuineness  or  reaHty  of  consent.  If  we  have  an  apparent  agreement 
possessing  the  element  of  form  or  consideration,  or  both,  and  made 
between  parties  capable  of  contracting,  we  must  ask  whether  the 
consent  of  both  or  either  of  the  parties  was  given  under  such  circum- 
stances as  to  make  it  no  real  expression  of  their  intention. 

There  may  be  various  causes  for  unreality  of  consent :  (i)  The 
parties  may  not  have  meant  the  same  thing;  or  one  or  both,  while 
meaning  the  same  thing,  may  have  formed  untrue  conclusions  as  to 
the  subject-matter  of  the  agreement.  This  is  Mistake.  (2)  One  of 
the  parties  may  have  been  led  to  form  untrue  conclusions  respecting 
the  subject-matter  of  the  agreement  by  statements  innocently  made, 
or  facts  innocently  withheld  by  the  other.  This  is  Misrepresentation. 
(3)  These  untrue  conclusions  may  have  been  induced  by  intentional 
misrepresentations  or  active  concealment  by  the  other  party,  or  inten- 
tional concealment  where  there  was  a  duty  to  disclose,  for  the  purpose 
of  deceiving.  This  is  Fraud.  (4)  The  consent  of  one  of  the  parties 
may  have  been  extorted  from  him  by  the  other  by  actual  or  threatened 
violence.  This  is  Duress.  (5)  Circumstances  may  have  rendered  one 
of  the  parties  morally  incapable  of  resisting-  the  will  of  the  other,  so 


196  REALITY   OP   CONSENT.  (Cll.  7 

that  his  consent  was  no  real  expression  of  intention.     This  is  Undue 
Influence.^ 

MISTAKE. 

130.  Mistake  is  -nrhere  tlie  parties  did  not  mean  the  same  thing,   or 

ivhere  one  or  both.,  ivhile  mea^ning  the  same  thing,  formed  un> 
true  conclusions  as  to  the  subject-matter  of  the  agreement. 

131.  Mistake  avoids  the  contract  in  the  followdng  cases: 

(a)  AVhere  the  mistake  is  as  to  the  nature  of  a  xsrritten  contract,  the 

execution  of  \Fhich  Is  induced  or  procured  by  misrepresenta- 
tion; 

(b)  "Where  the  mistake  is  as  to  the  identity  of  the  person  vnLth  ivhom 

the  contract  is  made; 

(c)  Where  the  subject-matter  of  the  contract,  unknown  to  the  par- 

ties, does  not  exist; 

(d)  Where  two  things  have  the  same  name,  and  the  parties,  owing 

to  the  identity  of  names,  do  not  mean  the  same  subject-matter; 

(e)  W^here   one   of  the   parties   is   mistaken   as   to   the  nature   of   the 

promise  made,  and  the  other  party  knoivs,  or  has  good  reason 
to  know^,  of  the  mistake.  This,  however,  it  seems,  renders  the 
contract  merely  voidable. 

It  must  be  borne  in  mind  that  we  are  here  dealing  with  mistake  of 
intention,  and  not  mistake  of  expression.  The  parties  may  be  genu- 
inely agreed  on  the  terms  of  their  contract,  but  the  terms  may,  by 
mistake,  be  so  expressed  as  not  to  convey  their  meaning.  In  these 
cases  they  may  be  permitted  to  explain  the  contract,  or  the  court  may 
correct  the  mistake.  This  is  mistake  of  expression,  and  pertains  to 
the  interpretation  of  contracts,  with  which  we  shall  deal  in  a  subsequent 
chapter. 

The  almost  universal  rule  is  that  a  man  is  bound  by  an  agreement 
to  which  he  has  expressed  his  assent  in  unequivocal  terms,  uninfluenced 
by  falsehood,  violence,  or  oppression.  If  he  has  exhibited  all  the 
outward  signs  of  agreement,  the  law  will  hold  that  he  has  agreed. 
As  a  rule,  a  person  cannot  avoid  his  contract  simply  by  showing  that 
he  has  made  a  mistake.  There  are  some  exceptions  to  the  rule,  which 
we  shall  now  consider. 

Mistake  as  to  the  Nature  of  the  Transaction — Written  Instrument. 

There  are  cases  in  which  a  contract  will  be  void  because  of  a  mistake 
as  to  the  nature  of  the  transaction.  Such  cases  arise  in  the  execution 
of  written  instruments,  and  must  arise  almost  of  necessity  from  mis- 
representation, either  of  a  third  person  or  of  the  other  party.  A  man 
who  has  executed  an  instrument  cannot  avoid  its  operation  by  saying 
that  he  did  not  put  his  mind  to  it  or  that  he  did  not  suppose  it  would 

1  Anson,  Cont  (8th  Ed.)  127. 


§§  130-131)  MISTAKE.  197 

have  any  legal  effect.*  He  must  have  been  induced  to  execute  it  by 
some  deceit  or  misrepresentation  which  ordinary  diligence  could  not 
penetrate.  Thus,  where  a  man  who  is  illiterate,  or  blind,  or  ignorant 
of  the  language,  executes  a  deed,  which  is  misread  or  misdescribed  to 
him  by  the  other  party  or  a  stranger,  and  the  deed  is  in  fact  a  different 
instrument  from  that  which  he  was  led  to  believe  it  to  be,  the  deed  is 
void.^  But  if  a  man  can  read  and  does  not  read  the  document  which 
he  signs,*  or  if,  being  unable  to  read,  he  signs  without  having  it  read," 
he  will  not  be  heard  to  say  that  the  contract  is  void,  although  in  such 
case,  if  he  was  induced  to  sign  it  by  fraudulent  misrepresentation  as 
to  the  character  or  terms,  it  is  generally  held  that  the  contract  is 
voidable.® 

In  a  leading  case,  the  acceptor  of  a  bill  of  exchange  had  induced  a 
person  to  indorse  it  by  telling  him  that  it  was  a  guaranty,  and  the 
defendant  signed  on  the  faith  of  the  representation  without  seeing  the 
face  of  the  bill.  It  was  held  that,  if  the  defendant  was  not  guilty  of 
any  negligence  in  so  signing,  the  bill  did  not  bind  him,  even  in  the 
hands  of  a  bona  fide  purchaser  for  value.  It  seems  "plain,  on  principle 
and  on  authority,"  said  the  court,  "that  if  a  blind  man,  or  a  man  who 
cannot  read,  or  who  for  some  reason  (not  implying  negligence)  for- 
bears to  read,  has  a  written  contract  falsely  read  over  to  him,  the  reader 
misreading  to  such  a  degree  that  the  written  contract  is  of  a  nature 
altogether  different  from  the  contract  pretended  to  be  read  from  the 
paper  which  the  blind  or  illiterate  man  afterwards  signs,  then,  at  least 
if  there  be  no  negligence,  the  signature  so  obtained  is  of  no  force. 
And  it  is  invalid,  not  merely  on  the  ground  of  fraud,  where  fraud 
exists,  but  on  the  ground  that  the  mind  of  the  signer  did  not  accompany 
the  signature;    in  other  words,  that  he  never  intended  to  sign,  and 

2  Hunter  v.  Walters,  L.  R.  7  Ch.  81;  Cannon  v.  Lindsey,  85  Ala.  198,  3 
South.  676,  7  Am.  St  Rep.  38.  And  see  Kennerty  v.  Phosphate  Co.,  21  S.  C 
226,  53  Am.  Rep.  669;  Little  v.  Little,  2  N.  D.  175,  49  N.  W.  736;  Quimby  v. 
Shearer,  56  Minn.  534,  58  N.  W.  155;  Campbell  v.  Van  Houten,  44  Mo.  App. 
231;  Liska  v.  Lodge,  112  Mich.  635,  71  N.  W.  171;  Royston  v.  Miller  (C.  C.) 
76  Fed.  50 ;  Chicago,  St  P.,  M.  &  O.  Ry.  v.  Belliwith,  83  Fed.  437,  28  C.  C.  A. 
358;  Muller  v.  Kelly  (C.  C.)  116  Fed.  545;  Sheneberger  v.  Insurance  Co.,  114 
Iowa,  578,  87  N.  W.  493,  55  L.  R.  A.  269 ;  Martin  v.  Smith,  116  Ala.  639,  22 
South.  917;  Bostwick  v.  Mutual  Life  Ins.  Co.,  116  Wis.  392,  92  N.  W.  246; 
Fivey  V.  Railroad  Co.,  67  N.  J.  I^w,  627,  52  Atl.  472,  91  Am.  St  Rep.  445. 

3  Thoroughgood's  Case,  2  Coke,  9;  McGinn  v.  Tohey,  62  Mich.  252,  28  N. 
W.  818,  4  Am.  St.  Rep.  848;  Schuylkill  Co.  v.  Copley,  67  Pa.  386,  5  Am.  Rep. 
441;  Rockford,  R.  L  &  St  L.  R.  Co.  v.  Shunick,  65  111.  223;  Burlington 
Lumber  Co.  v.  Lumber  Co.,  100  Io^Ya,  469,  69  N.  W.  558;  Sibley  v.  Holcomb, 
104  Ky.  670,  47  S.  W.  765. 

*  Cases  cited  supra,  note  2. 

^  Chicago,  St  P.,  M.  &  O.  Ry.  Co.  v.  Belliwith,  83  Fed.  437,  28  0.  a  A.  358 ; 
Muller  V.  Kelly  (C.  C.)  116  Fed.  545. 
8  Post,  p.  228,  note  126. 


198  REALITY   OF   CONSENT.  (Ch.  7 

therefore,  in  contemplation  of  law,  never  did  sign,  the  contract  to  which 
his  name  is  appended."  ^ 

In  this  case  the  contract  was  void,  and  therefore  could  not  be 
enforced  even  by  a  bona  fide  holder.  And  the  case  would  have 
been  the  same  had  the  execution  been  obtained,  without  negligence 
on  the  part  of  the  signer,  by  the  fraud  of  the  other  party.*  In  that 
case  also  the  minds  of  the  parties  never  meet,  for  tlie  defrauded  party 
thinks  he  is  signing  one  instrument,  and  the  defrauding  party  is  aware 
that  the  signer  is  signing  a  different  instrument.  The  case  is,  in  effect, 
one  of  mistake,  induced  by  fraud.  If  the  ground  of  avoidance  is  the 
fraud  of  the  other  party,  whereby  the  signer  was  induced  to  execute 
the  instrument  understandingly,  the  misrepresentation  not  relating  to 
the  character  of  the  instrument,  the  contract,  as  we  shall  see,  would 
be  voidable,  and  not  void.® 

The  absence  of  negligence  is  strongly  dwelt  upon  by  the  court  in 
the  case  above  stated,  and  the  jury  had  expressly  negatived  its  exist- 
ence. A  person  cannot  assert  the  invalidity  of  a  note  or  bill  of  exchange 
or  deed,  as  against  a  bona  fide  purchaser  for  value,  on  the  ground 
that  through  fraud  and  circumvention  he  was  induced  to  sign,  not 
knowing  the  nature  of  the  instrument,  unless  he  shows  that  he  was 
not  guilty  of  negligence ;  for  if  he  was  negligent  he  will  be  estopped 
from  asserting  the  invalidity.  If  he  shows  this,  but  not  otherwise, 
he  may  assert  the  invalidity  of  the  instrument,  even  as  against  a  bona 
fide  purchaser.^"     There  are  some  cases  which  hold  that  a  negotiable 

T  FOSTER  V.  McKINNON,  L.  R.  4  C.  P.  704.  And  see  Gibbs  v.  Linabury, 
22  Mich.  479,  7  Am,  Rep.  675 ;  Kagel  v.  Totten,  59  Md.  447 ;  Whitney  v.  Sny- 
der, 2  Lans.  (N.  Y.)  477;  Cline  v.  Guthile,  42  Ind.  227,  13  Am.  Rep.  357; 
WALKER  V.  EBERT,  29  Wis.  194,  9  Am.  Rep.  54;  Puffer  v.  Smith,  57  111. 
527;  Soper  v.  Peck,  51  Mich.  563,  17  N.  W.  57;  De  Camp  v.  Hamma,  29 
Ohio  St.  467;  Trambly  v.  Ricard,  130  Mass.  259;  Corby  v.  Weddle,  57  Mo. 
452 ;  Detwiler  v.  Bish,  44  Ind.  70 ;  Baldwin  v.  Bricker,  86  Ind.  221 ;  Hewett 
V.  Jones,  72  111.  208;  Bowers  v.  Thomas,  62  Wis.  480,  22  N.  W.  710;  Schaper 
V.  Schaper,  84  111.  603;  Vanbrunt  v.  Singley,  85  111.  281;  Esterly  v.  Eppelshel- 
mer,  73  Iowa,  260,  34  N.  W.  846;  W^ood  v.  Lock  Co.,  96  Ga.  120,  22  S.  E.  909. 

8  McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St.  Rep.  844;  Ester- 
ly V,  Eppelsheimer,  73  Iowa,  260,  34  N.  W.  846;  Green  v.  Wilkie,  98  Iowa,  74, 
66  X.  W.  1046,  36  L.  R.  A.  434,  60  Am.  St.  Rep.  184;  Lindley  v.  Hofman,  22 
Ind.  App.  237,  53  N.  B.  471.  And  see  cases  cited  in  note  7,  supra,  and  note 
10,  infra. 

»  Post,  p.  239. 

10  Chapman  v.  Rose,  56  N.  Y.  138,  15  Am.  Rep.  401;  Abbott  v.  Rose,  62  Me. 
194,  16  Am.  Rep.  427;  Taylor  v.  Atchison,  54  111.  196,  5  Am.  Rep.  118;  Mackey 
V.  Peterson,  29  Minn.  298,  13  N.  W.  132,  43  Am.  Rop.  211 ;  Upton  v.  Tribil- 
cock,  91  U.  S.  50,  23  L.  Ed.  203;  Gavagan  v,  Bryant,  83  111.  376;  Leach  v. 
Nichols,  55  111.  273;  Ross  v.  Doland,  29  Ohio  St  473;  Douglas  v.  Matting,  29 
Iowa,  498,  4  Am.  Rep.  238;  Fayette  Co.  Sav.  Bank  v.  StefCes,  54  Iowa,  214, 
6  N.  W\  207;  Millard  v.  Barton,  13  R.  I.  601;  Baldwin  v.  BaiTows,  80  Ind. 
351;   Putnam  v.  Sullivan,  4  Mass.  45,  3  Am.  Dec.  200;   Ort  v.  Fowler,  31  Kan, 


J 


§§  130-131)  MISTAKE.  199 

instrument  cannot  be  avoided  in  the  hands  of  a  bona  fide  holder,  even 
though  there  was  no  negligence;  ^^  but  the  great  weight  of  authority 
is  in  favor  of  the  rule  above  stated. 

Mistake  as  to  the  Person  with  Whom  the  Contract  is  Made. 

A  mistake  as  to  the  person  with  whom  the  contract  is  made  may 
avoid  it;  as,  for  instance,  where  a  contract  is  made  with  one  person 
under  a  belief  that  it  is  being  made  with  another.  Where  a  man  in- 
tends to  contract  with  one  person,  another  cannot  make  himself  a 
party  to  the  contract  by  substituting  himself;  for,  in  the  first  place, 
a  man,  in  entering  into  a  contract,  looks  to  the  credit  and  character  of 
the  person  with  whom  he  supposes  he  is  contracting,^*  and,  in  the 
second  place,  the  person  who  thus  substitutes  himself  is  never  present 
in  the  mind  of  the  other  party,  and  the  latter,  therefore,  does  not  con- 
sent to  a  contract  with  him.  Where  a  man  imitated  another's  signa- 
ture, and  thereby  induced  persons  to  supply  him  with  goods  under 
the  belief  that  they  were  supplying  the  person  whose  signature  was  imi- 
tated, it  was  held  that  there  was  no  contract  with  the  person  so  pro- 
curing the  goods.  "Of  him,"  says  Lord  Cairns,  "they  knew  nothing, 
and  of  him  they  never  thought.  With  him  they  never  intended  to  deal. 
Their  minds  never  even  for  an  instant  of  time  rested  upon  him,  and  as 
between  him  and  them  there  was  no  consensus  of  mind  which  could 
lead  to  any  agreement  or  contract  whatever.  As  between  him  and 
them  there  was  merely  the  one  side  to  a  contract,  where,  in  order  to 
produce  a  contract,  two  sides  would  be  required."  ^^ 

In  this  case  the  mistake  was  induced  by  fraud,  but  an  innocent  mis- 
take may  produce  the  same  result.  Thus,  where  an  order  for  goods 
was  sent  to  a  particular  person,  and  a  man  who  had  succeeded  to  his 
business  filled  the  order  without  giving  notice  of  the  change,  it  was 
held  that  he  could  not  recover  the  price  of  the  goods.  "In  order  to 
entitle  the  plaintiff  to  recover,"  it  was  said,  "he  must  show  that  there 
was  a  contract  with  himself."  ^*  And  on  the  same  principle,  if  a  man 
sells  goods  to  another,  representing  that  he  is  the  owner,  and  the  other 
party  intends  to  buy  from  him,  there  is  no  contract  with  the  real  owner, 

478,  2  Pac.  580,  47  Am,  Rep.  501;  Weller's  Appeal,  103  Pa.  594;  Johnston  v. 
Patterson,  114  Pa.  398,  G  All.  746;  Shirts  v.  Overjohn,  60  Mo.  305;  Citizens' 
Nat.  Bank  v.  Smith,  55  N.  H.  593.    And  see  cases  cited  supra,  note  8. 

11  First  Nat  Bank  v.  Johns,  22  W.  Va,  520,  46  Am.  Rep.  506  (collecting 
cases), 

12  Humble  v.  Hunter,  12  Q.  B.  311;  BOSTON  ICE  CO.  v.  POTTER,  122 
Mass.  28,  25  Am.  Rep.  9. 

18  CUNDY  V.  LINDSAY,  L.  R.  3  App.  Cas.  465.    Post,  p.  239. 

14  BOULTON  V.  JONES,  2  Hurl.  &  N.  564.  And  see  BOSTON  ICE  CO.  v. 
POTTER,  123  Mass.  28,  25  Am.  Rep.  9;  Randolph  Iron  Co.  v.  Elliott,  34  N. 
J.  Law,  184;  Gregory  v.  Wendell,  40  Mich.  443;  Barnes  v.  Shoemaker,  112 
Ind.  512,  14  N.  E.  3G7;  Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  9<>, 
Fox  V.  Tabel,  66  Conn.  397,  34  Atl.  lOL 


200  REALITY   OF  CONSENT.  (Ch.  7 

who  was  the  undisclosed  principal  of  the  seller,  for  "every  man  has 
a  right  to  elect  what  parties  he  will  deal  with."  ^'  So,  also,  if  a  man 
obtains  goods  from  another  by  falsely  representing  that  he  is  the  agent 
of  another  person,  to  whom  tlie  owner  of  the  goods  thinks  he  is 
selling  them,  the  sale  is  void.^*  To  render  the  sale  void,  however,  there 
must  be  a  false  representation  that  the  agency  exists,  and  not  merely 
belief  in  its  existence  on  the  part  of  the  seller,  and  intent  to  sell  to  the 
supposed  principal,^' 

Mistake  as  to  Subject-Matter  of  Contract. 

If  a  man  knows  the  nature  of  the  transaction,  and  the  party  with 
whom  he  is  entering  into  legal  relations,  it  is,  for  the  most  part,  his 
own  fault  if  the  subject-matter  of  the  contract — the  thing  contracted 
for  and  the  terms  of  the  bargain — is  not  what  he  supposed.  "If,  what- 
ever a  man's  real  intention  may  be,  he  so  conducts  himself  that  a  rea- 
sonable man  would  believe  that  he  was  assenting  to  the  terms  proposed 
by  the  other  party,  and  that  other  party,  upon  that  belief,  enters  into 
the  contract  with  him,  the  man  thus  conducting  himself  would  be 
equally  bound  as  if  he  had  intended  to  agree  to  the  other  party's 
terms."  ^®  And  so,  if  the  parties  are  agreed  in  clear  terms,  and  one 
of  them  does  not  get  what  he  anticipates  under  the  contract,  this  is, 
if  anything,  failure  of  performance,  and  not  mistake.  Cases  cited 
in  illustration  of  the  rule  that  a  man  is  not  bound  to  accept  a  thing 
substantially  different  from  that  which  he  bargained  for  ^^  have  nothing 
to  do  with  the  formation  of  contract,  and  we  must  keep  these  ques- 
tions of  mistake  and  so-called  failure  of  consideration  clearly  apart. 

IB  Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93;  Mitchell  v.  Rail- 
ton,  45  Mo.  App.  273.  It  Is  not  meant  that  an  agent  must  always  disclose 
his  agency.  An  agent  may  sell  the  property  of  his  principal  without  dis- 
closing that  he  acts  as  agent,  or  that  the  property  is  not  his  own;  and  the 
principal  may  maintain  an  action  in  his  own  name  to  recover  the  price.  If 
the  purchaser  says  nothing  on  the  subject,  he  Is  liable  to  the  unknown  prin- 
cipal.   Huntington  v.  Knox,  7  Cush.  (Mass.)  371.    See  Tiffany,  Ag.  304-307. 

16  Hardman  v.  Booth,  1  Hurl.  &  C.  803;  Hollins  v.  Fowler,  L.  R.  7  H.  L. 
757;  Hamet  v.  Letcher,  37  Ohio  St.  356,  41  Am.  Rep.  519;  Hentz  v.  Miller,  94 
N.  Y.  G7;  Barker  v.  Dinsmore,  72  Pa.  427,  13  Am.  Rep.  697;  EDMUNDS  v. 
TRANSPORTATION  CO.,  135  Mass.  283;  McCrillis  v.  Allen,  57  Vt  505; 
Peters  Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98,  20  N.  E.  291,  12  Am.  St.  Rep. 
367.  So,  also,  where  a  person  obtains  goods  by  falsely  representing  that  he 
is  member  of  a  firm,  and  gives  in  payment  a  forged  check  of  the  firm.  Al- 
exander V.  Swacldiamer,  105  Ind.  81,  4  N.  E.  433,  5  N.  E.  908,  55  Am.  Rep. 
180;  Moody  v.  Blake,  117  Mass.  23,  19  Am.  Rep.  394.  So,  also,  where  a  per- 
son obtains  goods  by  falsely  representing  that  he  is  agent  of  an  undisclosed 
principal.  Rodliff  v.  Dollinger,  141  Mass.  1,  4  N.  E.  805,  55  Am.  Rep.  439. 
See,  also,  Paine  v.  Loeb,  90  Fed.  164,  37  C.  C.  A.  434 ;  post,  p.  239. 

17  STODDARD  v.  HAM,  129  Mass.  383,  37  Am.  Rep.  369. 

18  Per  Blackburn,  J.,  in  Smith  v.  Hughes,  L.  R.  6  Q.  B.,  at  page  607. 

10  GOMPERTZ  V.  BARTLETT,  2  El.  &  Bl.  849;  Couder  v.  Hall,  26  B.  (N. 
S.)  22. 


§§  130-131)  MISTAKE.  201 

Mistake  as  to  the  subject-matter  of  a  contract  will  only  avoid  it  at 
law  in  a  few  cases.  Equity,  however,  may  grant  relief  in  cases  where 
the  law  may  afford  no  remedy.^** 

Saiiie — Mistake  as  to  Existence  of  Sub ject-M after. 

If  the  agreement  is  in  respect  of  a  thing  which,  unknown  to  both 
parties,  does  not  exist  at  the  time  of  entering  into  the  contract,  this 
goes  to  the  very  root  of  the  matter,  and  avoids  the  contract.  It  seems 
that  this  rests  upon  the  ground  that  the  existence  of  the  subject-matter 
is  a  condition  of  the  contract,  rather  than  upon  the  ground  of  mutual 
mistake.^^  The  subject  belongs  with  impossibility  of  performance; 
but,  inasmuch  as  the  thing  agreed  upon  has  ceased  to  be  possible  before 
the  agreement,  such  impossibility  prevents  a  contract  from  ever  arising, 
and  does  not  operate,  as  impossibility  arising  subsequent  to  the  agree- 
ment will  sometimes  operate,  as  a  form  of  discharge.  One  of  the 
leading  English  cases  on  this  subject  arose  out  of  a  sale  of  a  cargo  of 
corn  which  was  supposed  by  the  parties,  at  the  time  of  the  sale,  to  be 
on  its  voyage  to  England,  but  which,  in  fact,  having  become  heated 
on  the  voyage,  had  been  unloaded  and  sold.  It  was  held  that  the 
contract  was  void,  inasmuch  as  it  "plainly  imported  that  there  was 
something  which  was  to  be  sold  at  the  time  of  the  contract,  and  some- 
thing to  be  purchased,"  whereas  the  object  of  the  sale  had  ceased  to 
exist.^^  So,  also,  where  a  person  purchased  an  annuity  which,  at  the 
time  of  the  purchase,  had  ceased  to  exist  owing  to  the  death  of  the 
annuitant,  it  was  held  that  he  could  recover  the  price  which  he  had 
paid  for  it.^'  And  so  where  tlie  subject-matter  of  the  contract  is  a 
right  or  title  which,  unknown  to  the  parties,  does  not  exist.^*  There 
are  some  cases  seemingly  at  variance  with  this  rule,  but  they  are  cases 


20  See  Fritzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  61 ;  Geib  v.  Reynolds, 
35  Minn.  331,  28  N.  W.  923;  Fleetwood  v.  Brown,  109  Ind.  567,  9  N.  E.  352,  11 
N.  E.  779;  Thwing  v.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815. 

21  See  Anson,  Cont.  (8tli  Ed.)  135;    Pollock,  Cont.  (3d  Ed.)  386,  455. 

22  Couturier  v.  Hastie,  5  H.  L.  Cas.  673.  See,  also,  Allen  v.  Hammond,  11 
Pet.  63,  9  L.  Ed.  6.33;  GIBSON  v.  PEL.KIB,  37  Mich.  380;  Thompson  v.  Gould, 
20  Pick.  (Mass.)  134;  Ketchum  v.  Catlin,  21  Vt.  191;  King  v.  Doolittle,  1  Head 
(Tenn.)  77 ;  Scioto  Fire  Brick  Co.  v.  Pond,  38  Ohio  SL  65 ;  Anderson  v.  Arm- 
stead,  69  111.  452;  Fritzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  61;  Riegel  v. 
Insurance  Co.,  153  Pa.  134,  25  Atl.  1030;  Bluestone  Coal  Co.  v.  Bell,  38  W.  Va. 
297,  18  S.  E.  493;  Thwing  v.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815;  United 
States  V.  Charles,  74  Fed.  142,  20  C.  C.  A.  346;  Nordyke  &  Marmon  Co.  v. 
Kehlor,  155  Mo.  643,  56  S.  W.  287,  78  Am.  St  Rep.  GOO. 

2  3  STRICKLAND  v.  TURNER,  7  Exch.  208.  And  see  Cochran  v.  Willis.  L. 
R.  1  Ch.  App.  58. 

24  BINGHAM  V.  BINGHAM.  1  Ves.  Sr.  126 ;  COOPER  v.  PHIBBS,  L.  R.  2 
H.  L.  170;  Yaraum  v.  Town  of  Hygate,  65  Vt.  416.  26  Atl.  628;  Hamilton  v. 
Park  &  McKay  Co.,  125  Mich.  72,  83  N.  W.  1018 ;   post,  p.  206. 


202  REALITY   OF   CONSENT.  (Cb.  7 

in  which  the  contract  was  absolute,  and  not  impliedly  conditional  upon 
the  existence  of  the  subject-matter,^^ 

Same — Mistake  as  to  Identity  of  Subject-Matter. 

An  agreement  may  be  void  where  there  is  a  mistake  as  to  the  identity 
of  the  subject-matter;  as,  for  instance,  where  the  contract  is  in  refer- 
ence to  a  thing  of  a  certain  name,  and  one  of  the  parties  thinks  he  is 
contracting  for  one  thing  that  answers  the  description,  while  the  other 
party  thinks  it  is  something  else  which  also  answers  the  description. 
Thus,  where  a  person  agreed  to  buy  a  cargo  "to  arrive  ex  Peerless  from 
Bombay,"  and  there  were  two  ships  of  that  name,  and  the  buyer  meant 
one,  and  the  seller  the  other,  it  was  held  that  there  was  no  contrac:-.-' 

The  things  meant  by  the  parties  must  have  fitted  the  description,  or 
there  is  no  mistake.  If,  in  the  case  above  mentioned,  the  buyer  had 
meant  a  ship  of  a  different  name,  he  would  have  been  bound  by  the 
terms  of  his  contract.  Unless  the  description  admits  of  more  mean- 
ings than  one,  the  party  setting  up  mistake  can  only  do  so  by  showing 
that  he  meant  something  different  from  what  he  said,  and,  as  we  have 
seen,  he  cannot  do  this.  Nor  will  a  mere  misnomer  of  the  subject- 
matter  of  a  contract  entitle  either  party  to  avoid  it  if  the  contract 
itself  contains  such  a  description  of  its  subject-matter  as  practically 
identifies  it.^^ 

Same — Mistake   as   to   Nature'  and   Essential    Qualities   of   Subject- 
Matter. 
If  the  parties  are  agreed  as  to  the  terms  and  subject-matter  of  the 
contract,  it  is   complete  by  mutual  assent,  notwithstanding  that  the 

25  Barr  v.  Gibson,  3  Mees.  &  W.  390;  HILLS  v.  SUGHRUE,  15  Mees.  &  W. 
253.  "The  parties  to  an  agreement  must  be  acquainted  with  the  extent  of 
their  rights  and  the  nature  of  the  information  they  can  call  for  respecting 
them,  else  they  will  not  be  bound.  The  reason  is  that  they  proceed  under  an 
idea  that  the  fact  which  is  the  inducement  to  the  contract  is  in  a  particular 
waj',  and  give  their  assent,  not  absolutely,  but  on  conditions  that  are 
falsified  by  the  event.  But  where  the  parties  treat  upon  the  basis  that  the 
fact  which  is  the  subject  of  the  agreement  is  doubtful,  and  the  consequent 
risk  each  is  to  encounter  is  taken  into  consideration  in  the  stipulations  as- 
sented to,  the  contract  will  be  valid,  notwithstanding  any  mistake  of  one  of 
the  parties,  provided  there  be  no  concealment  or  unfair  dealing  by  the  oppo- 
site party  that  would  affect  any  other  contract"  Perkins  v.  Gay,  3  Serg.  &  R. 
(Pa.)  327,  7  Am.  Dec.  653. 

2  6  RAFFLES  V.  WICHELHAUS,  2  Hurl.  &  C.  906.  And  see  Gardner  v. 
Lane,  9  Allen  (Mass.)  492,  85  Am.  Dec.  779;  KYLE  v.  KAVANAGH,  103 
Mass.  350,  4  Am.  Rep.  560;  Thornton  v.  Kempster,  5  Taunt.  7S0;  Cutts  v. 
Guild,  57  N.  Y.  229;  Sheldon  v.  Capron,  3  R.  I.  171;  Harvey  v.  Harris,  112 
Mass.  32.  Where  on  a  sale  of  land  one  party  thinks  he  is  buying  one  tract, 
and  the  other  party  thinlcs  he  is  selling  a  different  tract,  there  is  no  con- 

2T  lonides  v.  Pacific  Ins.  Co.,  L.  R.  6  Q.  B.  6SG;  Hazard  v.  Insurance  Co.,  1 
Sumn.  218,  Fed.  Cas.  No.  0,282. 


§§  130-  131)  MISTAKE.  203 

parties  may  be  totally  mistaken  in  the  motives  which  induced  the  ascent. 
The  fact  that  the  subject-matter  of  the  contract  possessed,  or  failed  to 
possess,  qualities  which  the  parties  both  believed,  or  did  not  believe, 
it  to  possess,  is  immaterial.-^  The  parties  may,  indeed,  make  the  ex- 
istence of  some  quality  a  condition  of  the  contract,  as  if  they  should 
contract  for  the  sale  of  "this  uncut  diamond,"  in  which  case,  if  the 
contract  should  be  construed  as  making  it  a  condition  that  the  uncut 
stone  in  question  should  be  a  diamond  and  in  fact  the  stone  was  not 
a  diamond,  there  would  be  no  contract,  because  the  subject-matter 
of  the  contract  was  not  in  existence.^^  On  the  other  hand,  if  the 
subject  of  sale  was  an  uncut  stone,  as  a  matter  of  fact  believed  by  both 
parties  to  be  a  diamond,  but  there  was  nothing  in  the  terms  of  the 
contract  to  mal<:e  it  a  condition  that  the  stone  should  be  a  diamond, 
their  mutual  mistake  as  to  the  nature  of  the  stone  would  not  affect  the 
validity  of  the  contract.^"  Thus,  where  a  woman  sold  an  uncut  stone 
to  a  jeweler  for  $i,  both  being  ignorant  of  the  nature  of  the  stone,  and 
it  turned  out  to  be  a  diamond  worth  $i,ooo,  it  was  held  that  the  con- 
tract was  binding.^^  So  where  the  subject  of  sale  was  a  note,  the 
maker  of  which  the  parties  mutually  supposed  to  be  solvent.^^  It  is 
difficult  to  reconcile  with  the  current  of  authority  the  case  of  Sher- 

tract.  KYLE  v.  KAVANAGH,  supra;  Strong  v.  Lane,  66  Minn.  94,  68  N.  W. 
765.    And  see  Irwin  v.  Wilson,  45  Oliio  St.  426,  15  N.  E.  209. 

2  8  WOOD  V.  BOYNTON,  64  Wis.  265,  25  N.  W.  42,  54  Am.  Rep.  610; 
HECHT  V.  BATCHELLER,  147  Mass.  335,  17  N.  E.  651,  9  Am.  St.  Rep.  708 ; 
Taylor  v.  Fleet,  4  Barb.  95;  Taylor  v.  Ford,  131  Cal.  440,  63  Pac.  770.  A 
settlement  with  a  railway  company  for  injuries  is  binding,  although  the 
parties  were  ignorant  of  the  extent  of  the  injuries.  Rideal  v.  Railway 
Co.,  1  Fost  &  F.  706;  Seeley  v.  Traction  Co.,  179  Pa.  334,  36  Atl.  229;  KO- 
W^lUvE  V.  LIGHT  CO.,  103  Wis.  472,  79  N.  W.  762,  74  Am.  St.  Rep.  877; 
Houston  &  T.  C.  R.  Co.  v.  MeCarty,  94  Tex.  298,  60  S.  W.  429,  53  L.  R.  A.  507, 
80  Am.  St.  Rep.  854. 

2  9  "But  sometimes,  even  when  the  thing  which  is  the  subject-matter  of  an 
agreement  is  specifically  ascertained,  the  agreement  may  be  avoided  by  ma- 
terial error  as  to  some  attribute  of  the  thing,  for  some  atti'ibute  which  the 
thing  in  truth  has  not  may  be  a  material  part  of  the  description  by  which 
the  thing  was  contracted  for.  It  this  is  so,  the  tiling  as  it  really  is,  namely, 
without  that  quality,  is  not  that  to  which  the  common  intention  of  the  par- 
ties was  directed,  and  the  agreement  is  void.  An  error  of  this  kind  will  not 
sufflce  to  make  the  transaction  void,  unless  (1)  it  is  such  that,  according  to 
the  ordinary  course  of  dealing  and  use  of  language,  the  difference  made  by 
the  absence  of  the  quality  wi-ongly  supposed  to  exist  amounts  to  a  difference 
in  kind;  (2)  and  the  error  is  also  common  to  both  pai'ties."  Pol.  Cont.  (3d 
Ed.)  450.  See,  on  this  point,  Brant.  Cont  104-108;  Miles  v.  Stevens,  3  Pa. 
21,  45  Am.  Dec.  621;  Irwin  v.  Wilson,  45  Ohio  St.  426,  15  N.  E.  209;  Watson 
V.  Brown,  113  Iowa,  308,  85  N.  W.  28. 

3  0  Hood  V.  Todd  (Ky.)  58  S.  W.  783. 

31  WOOD  V.  BOYNTON.  64  Wis.  265,  25  N.  W.  42.  54  Am.  Rep.  610. 
3  2  HECHT  V.  BATCHELLER,  147  Mass.  335,  17  N.  E.  G51,  9  Am.  St  Rep. 
70S. 


204  REALITY   OF   CONSENT.  (Ch.  7 

wood  V.  Walker,  where  the  subject  of  sale  was  a  blooded  cow,  be- 
lieved by  the  parties  to  be  barren,  and  hence  worth  only  $80,  which 
was  the  price,  but  actually  capable  of  breeding,  and  hence  worth  not  less 
than  $750,  and  it  was  held  that  the  seller  could  rescind  on  the  ground 
that  the  mistake  went  to  the  substance  of  the  agreement^' 

Same — Mistake  as  to  Quantity  or  Price. 

Quantity  as  well  as  quality  may  be  a  condition  of  the  contract,  and 
in  such  case,  if  the  designated  quantity  does  not  exist,  there  is  no  con- 
tract because  of  the  nonexistence  of  the  subject-matter.  Where,  for 
example,  the  contract  is  for  the  sale  of  a  described  tract,  which  is  also 
described  as  containing  a  certain  number  of  acres,  it  has  been  held 
that  a  material  difference  in  the  quantity  is  ground  for  rescission.** 

Of  course,  if  the  acceptance  varies  from  the  terms  of  the  offer,  there 
is  no  contract.  Thus,  where,  by  mistake  of  a  telegraph  clerk,  an  offer 
is  wrongly  transmitted,  and  is  accepted  as  altered,  it  has  been  held 
that  the  offeror  is  not  bound. ^"^  So  if  the  price  is  stated  in  such  terms 
that  the  offeree  understands  it  as  for  one  quantity,  while  the  offeror 
means  it  in  another,  the  parties  are  never  ad  idem.*^  The  effect  of 
such  mistake  is  merely  to  show  that  there  was  no  contract,  because  of 
the  failure  of  the  minds  of  the  parties  to  meet. 

Mistake  as  to  Nature  of  Promise  Knozvn  to  the  Other  Party. 

Except  as  stated  in  the  preceding  paragraphs,  the  only  form  of  mis- 
take that  can  affect  the  validity  of  a  contract  is  where  there  is  a 
mistake  on  the  part  of  one  of  the  parties  as  to  the  nature  of  the  promise, 
and  the  other  party  knows  of  the  mistake. 

S3  SHERWOOD  V.  WALKER,  66  Mich.  568,  33  N.  W.  919,  11  Am.  St.  Rep. 
531. 

3  4  Ne^vton  v.  Tolles,  66  N.  H.  136,  19  Atl.  1092,  9  L.  R.  A.  50,  49  Am.  St. 
Rep.  593.  As  to  mistake  as  to  quantity  of  land,  and  relief  in  equity,  see  Paine 
V.  Upton,  87  N.  Y.  327,  41  Am.  Rep.  371;  Miller  v.  Craig,  83  Ky.  623,  4  Am. 
St.  Rep.  179;  Pratt  v.  Bowman,  37  W.  Va.  715,  17  S.  E.  210;  Hill  v.  Buckley, 
17  Ves.  394 ;  Rogers  v.  Pattie,  96  Va.  498,  31  S.  B.  897 ;  Bingham  v.  Madison, 
103  Tenn.  358,  52  S.  W.  1074,  47  L.  R.  A.  267. 

35  Henkel  v.  Pape,  L.  R.  6  Exch.  7;  Pegram  t.  Telegraph  Co.,  100  N.  C.  28, 
6  S.  E.  770,  6  Am.  St.  Rep.  557;  Pepper  v.  Telegraph  Co.,  87  Tenn.  554,  11  S. 
W.  783.  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699.  Some  courts,  however,  hold  the 
contrary,  on  the  gi-ound  that  the  telegraph  company,  being  selected  by  the 
proposer,  is  his  agent,  and  that  he  and  not  the  other  party  should  suffer  loss 
from  the  error.  His  remedy  is  against  the  telegraph  company  if  it  was 
negligent.  See  Western  Union  Tel.  Co.  v.  Shotter,  71  Ga.  760;  AYER 
V.  TELEGRAPH  CO.,  79  Me.  493,  10  Atl.  495.  And  see  Durkee  v.  Railroad 
Co.,  29  Vt.  127;  Anheuser-Busch  Brewmg  Ass'n  v.  Hutmacher,  127  111.  652, 
21  N.  E.  626,  4  L.  R.  A.  575 ;  Howley  v.  Whipple,  48  N.  H.  487 ;  Saveland  v. 
Green,  40  Wis.  431 ;   Barons  v.  Brown,  25  Kan.  410. 

3  6  Greene  v.  Bateman,  2  Woodb.  &  M.  350.  See,  also,  RUPLEY  v.  DAG- 
Gr71"r,  74  111.  351;  ROVEGXO  v.  DEFFERARI,  40  Cal.  459;  Peerless  Glass 
Co.  V.  Tinware  Co.,  121  Cal.  641,  54  Pac.  101. 


§§  130-131)  MISTAKE.  205 

It  must  be  remembered  that  we  are  speaking  here  of  contracts  which 
are  prima  facie  valid,  and  we  must  exclude  from  our  consideration 
cases  in  which  the  offer  and  acceptance  never  agreed  in  terms,  so  that 
there  was  never  the  outward  form  of  agreement,  and  cases  in  which 
the  meaning  of  the  terms  is  disputed,  so  that  the  court  must  determine 
whether  the  contract  has,  upon  its  true  construction,  been  performed 
or  broken. 

A  mistake  on  the  part  of  one  of  the  parties  to  a  contract,  as  a  mis- 
understanding in  respect  to  the  nature  or  qualities  of  the  subject-matter, 
or  a  mistake  in  fixing  or  expressing  the  terms,  not  induced  by  the 
conduct  of  the  other  party,  has  as  a  rule  no  effect  upon  the  contract.''^ 
But  the  law  will  not  allow  one  party  to  accept  a  promise,  which  he 
knows  that  the  other  party  understands  in  a  different  sense  from  that 
in  which  he  understands  it.^^  If  the  mistake  or  misunderstanding  of 
the  one  party  as  to  the  nature  of  the  promise  is  known  to  the  other, 
or  if  the  other  has  reason  to  know  it,  the  contract  is  voidable.'^  Thus 
where  a  person  was  sued  for  refusing  to  accept  some  oats  which  he 
had  agreed  to  buy  from  the  plaintiff,  on  the  ground  that  he  had  agreed 
and  intended  to  buy  old  oats,  and  that  those  supplied  were  new,  the 
jury  were  told  that,  if  the  plaintiff  knew  that  the  defendant  "thought 
he  was  buying  old  oats,"  then  he  could  not  recover.  The  court  of 
review,  however,  held  that  this  was  not  enough  to  avoid  the  sale ;  that 
in  order  to  do  so  the  plaintiff  must  have  known  that  the  defendant 
"thought  he  was  being  promised  old  oats."  It  was  not  knowledge  of 
the  misapprehension  of  the  quality  of  the  oats,  but  knowledge  of  the 
misapprehension  of  the  quality  promised,  which  would  defeat  a  re- 
covery.*°  So  where  the  seller,  intending  to  offer  cattle  for  $261.50, 
by  a  slip  of  the  tongue  offered  them  for  $161.50,  and  the  buyer,  having 
good  reason  to  suppose  that  the  price  named  was  a  mistake,  accepted 
the  offer  and  paid  $20  on  account,  and  the  seller  tendered  back  the 
$20,  and  repudiated  the  sale,  it  was  held  that  the  buyer  was  not  entitled 
to  maintain  replevin. ^^  And  where  by  mistake  the  plaintiff  in  compil- 
ing a  rate  sheet  printed  the  fare  at  $21.25  instead  of  $36.70,  and  the 

87  Scott  V.  Littledale,  S  El.  &  Bl.  815 :   rpople's  Bank  v.  Bog.art,  81  N.  "S.  lUl. 
37  Am.  Rep.  481;   LAIDLAW  v.  ORGAN,  2  Wheat.  178,  4  L.  Ed.  214;   Borden 
v.  Railroad  Co.,  113  N.  C.  570,  18  S.  E.  392,  37  Am.  St.  Rep.  632;    Griffin  v. 
O'Xeil,  48  Kan.  117,  29  Pac.  143;   Seeley  v.  Traction  Co.,  179  Pa.  334,  36  Atl. 
229;   Brown  v.  Levy,  29  Tex.  Civ.  App.  389,  69  S.  W.  255. 

3  8  Anson,  Cont.  (Stii  Ed.)  138. 

3  9  Smith  V.  Hughes,  L.  R.  6  Q.  B.  597;  Thayer  v.  Knote,  59  Kan.  181,  52 
Pac.  433.    Sir  William  Anson  says  "void."    Anson,  Cont.  (8th  Ed.)  138. 

*o  Smith  V.  Hughes,  supra. 

41  Harran  v.  Foley,  62  Wis.  584,  22  N.  W.  837.  See,  also,  Webster  v.  Cecil, 
30  Beav.  62;  Tamplin  v.  Jones,  15  Ch.  D.  221;  Gerrard  v.  Franlsel,  30  Beav. 
445;  Everson  v.  Granite  Co.,  65  Vt  658,  27  Atl.  320. 


206  REALITY   OF   CONSENT.  (Ch.  7 

defendant,  who  had  discovered  the  mistake,  purchased  tickets  at  the 
printed  price,  it  was  held  that  the  plaintiff  could  rescind,*^ 

This  subject  is  treated  by  Sir  William  Anson  and  many  other  writers 
under  mistake,  but  most  of  the  courts  of  this  country  treat  is  as  a 
question  of  fraud.  Whatever  classification  is  adopted,  it  seems  that 
mistake  of  the  character  under  consideration  can  have  no  greater  effect 
than  to  render  the  contract  voidable,  not  void. 

Mistake  of  Laiv. 

As  a  rule,  ignorance  or  mistake  of  law,  by  reason  of  which  the 
parties  do  not  understand  the  legal  effect  of  their  contract,  does 
not  avoid  it,  unless  there  is  some  fraud,  or  unless  there  is  a  relation 
of  confidence  between  the  parties.*^ 

In  cases  where  the  nonexistence  of  a  right  is  concerned,  it  has  been 
said  that  the  mistake  is  not  a  mistake  of  law,  so  as  to  render  the  avoid- 
ance of  a  contract  on  that  ground  a  violation  of  the  rule  that  ignorance 
of  law  is  no  excuse.  "It  is  said,  'Ignorantia  juris  baud  excusat ; '  but 
in  that  maxim  the  word  'jus'  is  used  in  the  sense  of  denoting  general 
law, — the  ordinary  law  of  the  country.  But,  when  the  word  'jus'  is 
used  as  denoting  a  private  right,  that  maxim  has  no  application.  Pri- 
vate right  of  ownership  is  a  matter  of  fact ;  it  may  be  the  result  also 
of  a  matter  of  law ;  but,  if  parties  contract  under  a  mutual  mistake 
and  misapprehension  as  to  their  relative  and  respective  rights,  the 
result  is  that  that  agreement  is  liable  to  be  set  aside  as  having 
proceeded  upon  a  common  mistake."  **     Under  this  rule,  the  sale  of 

4  2  SHELTON  V.  ELLIS,  70  Ga.  297.  A  contract  to  furnish  the  government 
with  many  articles  at  stipulated  prices,  among  them  shucks  at  60  cents  per 
pound,  was  unenforceable  as  to  the  shucks,  where  the  government  showed 
that  they  were  worth  from  $12  to  $35  per  ton;  that  it  was  customary  to  buy 
them  by  the  hundred  weight;  and  that  the  seller  failed  to  strike  out  the 
word  "pounds"  on  the  printed  form  of  proposal,  and  to  insert  "himdred 
weight"  instead,  though  the  seller  insisted  that  there  was  no  mistake  on  his 
part.  Hume  v.  United  States,  132  U.  S.  406,  10  Sup.  Ct.  838,  33  L.  Ed.  393. 
See,  also,  Moffett,  Hodgkins  &  Clarke  Co.  v.  City  of  Rochester,  178  U.  S. 
373,  20  Sup.  Ct.  957,  44  L.  Ed.  1108. 

4  3  Birkhauser  v.  Schmitt,  45  Wis.  316,  30  Am.  Rep.  740;  FISH  v.  CLE- 
T^ND,  .33  111.  243;  Hunt  v.  Rousmanier,  1  Pet.  1,  7  L.  Ed.  27;  Storrs  v.  Bar- 
ker, 6  Johns.  Ch.  1G6;    Starr  v.  Bennett,  5  Hill  (N.  Y.)  303;    Bank  of  United 

4  4  COOPER  V.  PHIBBS,  L.  R.  2  H.  L.  170,  per  Lord  Westbm-y.  And  see 
Wilson  V.  Insurance  Co.,  60  Md.  157;  Toland  v.  Corey,  6  Utah,  392,  24  Pac. 
190;  Lovell  v.  Wall,  31  Fla.  73,  12  South.  659;  Motherway  v.  Wall,  168  Mass. 
333,  47  N.  E.  135.  "In  the  often  quoted  passage  *  *  *  he  [Lord  West- 
buryl  only  meant  that  certain  words,  such  as  'ownership,'  'marriage,'  'settle- 
ment,' etc.,  import  both  a  conclusion  of  law  and  facts  justifying  it,  so  that, 
when  asserted  without  explanation  of  what  the  facts  relied  on  are,  they  as- 
sert the  existence  of  facts  sufficient  to  justify  the  conclusion,  and  a  mistake 
induced  by  such  an  assertion  is  a  mistake  of  fact."  Alton  v.  Bank,  157  Mass. 
341,  32  N.  E.  228,  18  L.  R.  A.  144,  34  Am.  St.  Rep.  285,  per  Holmes,  J. 


§§  132-134)  MISTAKE.  207 

a  thing  which,  unknown  to  the  parties,  already  belongs  to  the  buyer, 
or  does  not  belong  to  the  seller,  is  void..*"  This  is  not  a  mistake  of 
law,  but  of  fact. 

Ignorance  of  foreign  laws,  including  the  laws  of  a  sister  state,  is 
regarded  as  ignorance  of  fact,  and  not  of  law,  since  a  person  is  not 
bound  to  acquaint  himself  with  them.*^ 

A  mistake  in  drawing  up  a  contract,  or  a  mistake  in  the  legal  effect 
of  a  description  in  a  deed  or  other  writing,  or  in  the  use  of  technical 
language,  may  be  ground  for  relief  in  equity.*' 

SAME— EFFECT— REMEDIES.  \lc 

132.  EFFECT.      Mistake,  where  it  lias  aiiy  effect,  as  a  rale  renders  a 

contract  void. 

133.  REMEDIES  AT  LAW^.     At  common  law  the  contract  may  he  re- 

pudiated if  it  is  executory,  or,  if  executed  in  w^hole  or  in  part, 
Tvhat  has  heen  paid  or  delivered  under  it  may  he  recovered  hack. 

134.  REMEDIES  LN  EQUITY.      In  equity  a  suit  for  specific  perform- 

ance may  he  resisted;  or  suit  may  he  hrought  to  declare  the 
contract  void;  or,  if  the  mistake  is  merely  in  drawing  up  the 
contract,  suit  may  he  hrought  to  reform  the  iiLstrument. 

As  we  shall  presently  see,  fraud  renders  a  contract  voidable  only. 
The  effect  of  mistake,  however,  where  it  has  any  operation  at  all,  is, 
as  a  rule,*^  to  render  the  contract  void.     The  common  law,  therefore. 

States  V.  Daniel,  12  Pet.  32,  9  L.  Ed.  989;  Mellish  v.  Robertson,  25  Vt.  603; 
Good  V.  Herr,  7  Watts  &  S.  (Pa.)  253,  43  Am.  Dec.  236;  Rice  v.  Manufac- 
turing Co.,  2  Cush.  (Mass.)  80;  Dodge  v.  Insurance  Co.,  12  Gray  (Mass.)  G5; 
Hubbard  v.  Martin,  8  Yerg.  (Tenn.)  498;  Townsend  v.  Cowles,  31  Ala.  42S; 
Christy  v.  Sullivan,  50  Cal.  337;  Wbeaton  v.  Wheaton,  9  Conn.  96;  Goltra  v. 
Sanasack,  53  111.  458;  Upton  v.  Tribilcock,  91  U.  S.  45,  23  L.  Ed.  203;  Porter 
V.  Jefferies,  40  S.  C.  92,  18  S.  E.  229;  Osburn  v.  Throckmorton,  90  Va.  311,  18 
S.  E.  285;  Pittsburgh  &  L.  R.  Iron  Co.  v.  Iron  Co.,  118  Mich.  109,  76  N.  W. 
395;  post,  pp.  226,  ai2.  But  see  Lowndes  v.  Chisholm,  2  McCord,  Eq.  (S.  C.) 
455,  16  Am.  Dec.  667. 

45  2  Bl.  Comm.  450;  Trigg  v.  Read,  5  Humph.  (Tenn.)  529,  42  Am.  Dec.  447; 
BINGHAM  V.  BINGHAM,  1  Ves.  Sr.  126;  Martin  v.  McCormick,  8  N.  Y.  331; 
Cutts  V.  Guild,  57  N.  Y.  229.  Contra,  Birkhauser  v.  Schmitt,  45  Wis.  316,  30 
Am.  Rep.  740.    Ante,  p.  201. 

4  6  HAVEN  V.  FOSTER,  9  Pick.  (Mass.)  112,  19  Am.  Dec.  353;  Vinal  v.  Im- 
provement Co.,  53  Hun,  247,  6  N.  Y.  Supp.  595;  Bank  of  Chillicothe  v.  Dodge, 
8  Barb.  (N.  Y.)  233;  Wood  v.  Boeder,  .50  Neb.  476,  70  N.  W.  27;  Rosenbatim  v. 
Credit  System  Co.,  64  N.  J.  Law,  34,  44  Atl.  966. 

4T  Canedy  v.  Marcy,  13  Gray  (Mass.)  373;  Snell  v.  Insurance  Co.,  98  U.  S. 
85,  25  L.  Ed.  52;  Griswold  v.  Hazard,  141  U.  S.  200,  11  Sup.  Ct  972,  35  L.  Ed. 
678;  Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  38,  5  Am.  St.  Rep.  816;  Kyner 
V.  Boll,  182  111.  171,  54  N.  E.  925;  Pinkham  v.  Pinkham,  GO  Neb.  600,  S3  N. 
W.  837. 

48  As  to  the  effect  of  mistake  of  one  party  known  to  the  other.    Ante,  p.  204 


208  REALITY   OF   CONSENT.  (Cll.  7 

offers  two  remedies  to  a  person  who  has  entered  into  an  agreement 
which  is  void  on  the  grounc^  of  mistake.  If  it  be  still  executory,  he 
may  repudiate  it,  and  successfully  defend  an  action  brought  upon  it. 
If  he  has  paid  money  under  it,  he  may  recover  it  back  upon  the 
general  principle  that  "where  money  is  paid  to  another  under  the  influ- 
ence of  a  mistake, — that  is,  upon  the  supposition  that  a  specific  fact  is 
true,  which  would  entitle  the  other  to  the  money,  but  which  fact  is  un- 
true,— an  action  will  lie  to  recover  it  back."  *° 

In  equity  the  victim  of  the  mistake  may  resist  specific  performance 
of  the  contract,  and  may  sometimes  do  so  successfully  when  he  might 
not  be  able  to  successfully  defend  an  action  at  law  for  damages  arising 
from  its  breach.'"  He  may  also  sue  to  have  the  contract  declared  void, 
and  to  be  freed  from  his  liabilities  in  respect  of  it.  If  the  mistake  was 
in  drawing  up  the  contract,  a  suit  in  equity  may  be  brought  to  correct 
the  mistake,  and  reform  the  instrument  so  it  will  express  the  real  inten- 
tion of  the  parties. °^ 

A  party  who  is  entitled  to  avoid  a  contract  on  the  ground  of  mistake 
must  rescind  at  law,  or  seek  his  relief  in  equity,  within  a  reasonable 
time  after  knowledge  of  the  mistake.^^ 


MISREPRESENTATION. 

135.   Misrepresentation  is  an  innocent  misstatement  or  nondisclosure 
of  facts.     It  must  be  distinguisSied  from 

(a)  Fraud,  Tvliicli  is   a  false  representation   (or  nondisclosure  under 

such  circumstances  tliat  it  amounts  to  a  misrepresentation) 
knoTim  to  be  false,  or  made  in  reckless  ignorance  as  to  its  truth 
or  falsity. 

(b)  Conditions    and    x^arranties,    vchich    are    representations    consti- 

tuting terms  of  the  contract. 

49  KELLY  V.  SOLARI,  9  Mees.  &  W.  54;   WHEADON  y.  OLDS,  20  Wend. 

(N.  Y.)  174;   post,  pp.  536,  542. 

50  Webster  v.  Cecil,  30  Beav.  62;  Frisby  v.  Ballance,  4  Scam.  (111.)  287,  39 
Am.  Dec.  409;   Trigg  v.  Read,  5  Humph.  (Tenn.)  529,  42  Am.  Dee.  447. 

61  Elliott  V.  Sackett,  108  U.  S.  132,  2  Sup.  Ct.  375,  27  L.  Ed.  678;  Beardsley 
V.  Knight,  10  Vt.  185,  33  Am.  Dec.  193;  Newcomer  v.  Kline,  11  Gill  &  J.  (Md.) 
457,  37  Am.  Dec.  74 ;  Kilmer  v.  Smith,  77  N.  Y.  226,  33  Am.  Rep.  613 ;  Jenks 
V.  Fritz,  7  Watts  &  S.  (Pa.)  201,  42  Am.  Dee.  227;  Fowler  v.  Woodward,  26 
Minn.  347,  4  N.  W.  231;   Paine  v.  Upton,  87  N.  Y.  327,  41  Am.  Rep.  371. 

82  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798;  Thomas  v.  Bartow,  48  N. 
Y.  193;  Sable  y.  Maloney,  48  Wis.  331,  4  N.  W.  479;  Dodge  v.  Insui-ance  Ck)., 
12  Gray  (Mass.)  71;  Diman  v.  Railroad  Co.,  5  R.  L  130. 


§§  135-138)  MISREPRESENTATION.  209 


SAME— EFFECT. 

136.  Mere  misrepresentation  has  at  law^  no  efPect  on  a^  contract,  ex- 

cept in  the  case  of  contracts  said  to  be  uberrima;  fidei,  in 
which,  from  their  nature,  or  from  the  particular  circumstan- 
ces,  one  party  must  rely  on  the  other  for  his  knowledge  of  the 
facts,  and  the  other  Lb  bound  to  the  utmost  jgood^aith.  These 
are :  ~ 

(a)  Contracts  of  marine,  fire,  and  life  insurance. 

(b)  Contracts  betw^een  persons  occupying  a  confidential  relation,  as 

betw^een  attorney  and  client,  principal  and  agent,  guardian  and 
ward,  trustee  and  cestui  que  trust,  etc. 

(c)  To  a  limited  extent,  contracts  for  the  sale  of  land. 

(d)  In  England,  and  probably  with  us,  contracts  with  promoters  of  a 

corporation  for  the  purchase  of  shares. 

137.  Where  misrepresentation  has  any  effect  at  all,  it  renders  the  con- 

tract voidable. 

138.  A  material  misrepresentation  is  ground  for  granting  or  refusing 

equitable  relief. 

Distinguished  from  Fraud. 

"Misrepresentation,"  as  the  term  is  here  used,  must  be  distinguished 
from  "fraud,"  with  which  we  are  to  deal  presently.  Misrepresentation 
means  an  innocent  misstatement  or  nondisclosure  of  facts,  while  fraud 
consists  in  representations  which  are  known  to  be  false,  or  which 
are  made  in  reckless  ignorance  of  their  truth  or  falsity,  or  in  nondis- 
closure or  concealment  of  facts  under  such  circumstances  that  it 
amounts  to  a  representation  that  the  facts  concealed  do  not  exist.  This 
will  be  more  fully  explained  in  treating  of  fraud.  The  practical  test 
of  fraud,  as  opposed  to  mere  misrepresentation,  is  that  fraud  gives  rise 
to  an  action  ex  delicto,  while  innocent  misrepresentation  does  not. 
Fraud,  besides  being  a  vitiating  element  in  contract,  is  a  tort  or  wrong 
apart  from  contract,  and  may  be  treated  as  such  by  bringing  an  action 
of  deceit.  Misrepresentation,  in  exceptional  cases,  may  invalidate  a 
contract,  but  will  not  support  an  action  of  deceit. 

Distinguished  from  Conditions  and  Warranties. 

It  may  be  stated  as  a  rule,  subject  to  exception  in  case  of  certain 
contracts  to  be  hereafter  noticed,  that  innfifient  misrepresentation  or 
nondisclosure  of  fact  does  not  affect  the  validity  of  consent.  The 
tendency  of  the  courts  has  been  to  bring,  if.  possible,  every  statement^ 
which  is  important  enough  to  affect  consent  into  the  terms  of  the  con- 
tract, and  a  representation  which  cannot  be  shown  to  have  had  so 
material  a  part  in  determining  consent  as  to  have  formed,  if  not  the 
basis  of  the  contract,  at  least  an  integral  part  of  its  terms,  is  set  aside 
altogether.  Tf  it  i.c;  a  pf?^^  "f  <'!"""-  c-ontrnrt,  it  is  no  longer  called  a  mere_ 
misrepresentation ;  it js  a  condition  or  warranty^  and  its  falsity  does  not 
Claek  Cont.  (2d  Ed.) — 14 


210  REALITY  OF  CONSENT.  (Ch.  7 

affect  the  formation  of  the  contract,  but  operates  to  discharge  the  in- 
jured party  from  his  obligation,  or  gives  him  a  right  of  action  based 
on  the  contract  for  loss  sustained  by  reason  of  the  untruth  of  the 
statement.     The  statement  in  such  case  is  a  term  of  the  contract. 

The  distinctions  are  well  shown  in  a  leading  English  case.  The 
action  was  brought  on  a  charter  party  in  which  it  was  agreed  that  the 
plaintiff's  ship,  "then  in  the  port  of  Amsterdam,"  should  proceed  to  a 
certain  port  and  load  a  cargo.  At  the  date  of  the  contract  the  ship  was 
not  in  the  port  of  Amsterdam,  and  did  not  arrive  there  for  several 
days.  The  defendant  refused  to  carry  out  the  agreement,  and  repudi- 
ated it.  The  court  held  that  the  statement  that  the  ship  was  in  the 
port  of  Amsterdam  was  intended  by  the  parties  to  be  a  condition,  and 
a  breach  thereof  discharged  the  charterer.^^  Williams,  J.,  in  giving 
judgment,  thus  distinguishes  the  various  parts  or  terms  of  a  contract: 
"Properly  speaking,  a  representation  is  a  statement  or  assertion,  made 
by  one  party  to  the  other,  belore  or  at  the  lime  of  the  contract,  of  some 
matter  or  circumstance  relating  to  it.  Though  it  is  sometimes  con- 
tained in  the  written  instrument,  it  is  not  an  integral  part  of  the  con- 
tract, and  consequently  the  contract  is  not  broken,  though  the  repre- 
sentation proves  to  be  untrue ;  nor  (with  the  exception  of  the  case  of 
policies  of  insurance, — at  all  events,  marine  policies,  which  stand  on 
a  peculiar  anomalous  footing)  is  such  untruth  any  cause  of  action,  nor 
has  it  any  efficacy  whatever,  unless  the  representation  was  made  fraud- 
ulently, either  by  reason  of  its  being  made  with  a  knowledge  of  its 
untruth,  or  by  reason  of  its  being  made  dishonestly,  with  a  reckless 
ignorance  whether  it  was  true  or  untrue.  *  *  *  Though  repre- 
sentations are  not  usually  contained  in  the  written  instrument  of  con- 
tract, yet  they  sometimes  are.  But  it  is  plain  that  their  insertion 
therein  cannot  alter  their  nature.  A  question,  however,  may  arise 
whether  a  descriptive  statement  in  the  written  instrument  is  a  mere 
representation,  or  whether  it  is  a  substantive  part  of  the  contract.  This 
is  a  question  of  construction  which  the  court,  and  not  the  jury,  must 
determine.  If  the  court  should  come  to  the  conclusion  that  such  a 
statement  by  one  party  was  intended  to  be  a  substantive  part  of  his 
contract,  and  not  a  mere  representation,  the  often-discussed  question 
may,  of  course,  be  raised,  whether  this  part  of  the  contract  is  a  condi- 
tion precedent,  or  only  an  independent  agreement,  a  breach  of  which 
will  not  justify  a  repudiation  of  tlie  contract,  but  will  only  be  a  cause 
of  action  for  a  compensation  in  damages.  In  the  construction  of  char- 
es BETIN  V.  BURNESS,  3  Best  &  S.  751.  And  see  Davison  v.  Von  Lingen, 
113  U.  S.  40,  5  Sup.  Ct  346,  28  L.  Ed.  885;  Lowber  v.  Bangs,  2  Wall.  728,  17 
L.  Ed.  768;  NOKRINGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct.  12,  20  L.  Ed. 
366.  As  to  the  distinction  in  contracts  of  insurance,  see  Hartford  Protection 
Ins.  Co.  V.  Ilarmor,  2  Ohio  St.  4.52,  59  Am.  Dec.  084;  Schwarzbacli  v.  Protective 
Union,  25  W.  Va.  655,  52  Am.  Rep.  227. 


I 

I 


§§  135-138)  MISllEPUESENTATION.  211 

ter  parties,  this  question  has  often  been  raised  with  reference  to  stipu- 
lations that  some  future  thing  shall  be  done  or  shall  happen,  and  has 
given  rise  to  many  nice  distinctions.  Thus,  a  statement  that  a  vessel 
is  to  sail,  or  be  ready  to  receive  a  cargo,  on  or  before  a  given  day,  has 
been  held  to  be  a  condition,^*  vi^hile  a  stipulation  that  she  shall  sail  with 
all  convenient  speed,  or  u'ithin  a  reasonable  time,  has  been  held  to  be 
only  an  agreement.^^  But  with  respect  to  statements  in  a  contract 
descriptive  of  the  subject-matter  of  it,  or  of  some  material  incident 
thereof,  the  true  doctrine,  established  by  principle  as  well  as  authority, 
appears  to  be,  generally  speaking,  that,  if  such  descriptive  statement 
was  intended  to  be  a  substantive  part  of  the  contract,  it  is  to  be  regarded 
as  a  warranty ;  that  is  to  say,  a  condition  on  the  failure  or  nonper- 
formance of  which  the  other  party  may,  if  he  is  so  minded,  repudiate 
the  contract  in  toto,  and  so  be  relieved  from  performing  his  part  of  it, 
provided  it  has  not  been  partially  executed  in  his  favor.  If,  indeed,  he 
has  received  the  whole  or  any  substantial  part  of  the  consideration  for 
the  promise  on  his  part,  the  warranty  loses  the  character  of  a  condi- 
tion, or,  to  speak  perhaps  more  properly,  ceases  to  be  available  as  a 
condition,  and  becomes  a  warranty  in  the  narrower  sense  of  the  word, 
viz.  a  stipulation  by  way  of  agreement,  for  the  breach  of  which  a  com- 
pensation must  be  sought  in  damages." 

Same — Various  Senses  of  the  Terms  and  Their  Effect. 

It  will  be  observed  ^^  that  in  the  opinion  above  quoted  "condition" 
is  used  in  two  senses, — as  meaning  a  statement  that  a  thing  is,  and  a 
promise  that  a  thing  shall  be.  In  either  case  the  statement  or  promise 
is  of  so  important  a  nature  that  the  untruth  of  the  one,  or  the  breach 
or  the  other,  discharges  the  contract.  "Warranty"  also  is  used  in 
several  senses.  It  is  first  made  a  convertible  term  with  a  condition.  It 
is  then  used  "in  the  narrower  sense  of  the  word,"  in  which  sense  it. 
means  (i)  a  subsidiary  promise  in  the  contract,  the  breach  of  which; 
could  under  no  circumstances  do  more  than  give  rise  to  an  action  for 
damages,  and  (2)  a  condition,  the  breach  of  which  might  have  dis- 
charged the  contract  had  it  not  been  so  far  acquiesced  in  as  to  lose  its 
effect  for  that  purpose,  though  it  may  give  rise  to  an  action  for  damages. 

The  various  senses  of  the  terms  we  have  been  discussing,  and  their 
effect,  may  be  summed  up  as  follows:  (i)  "Representations,"  not 
fraudulent,  made  at  the  time  of  entering  into  the  contract,  but  not 
forming  a  part  of  it,  may  affect  its  validity  in  certain  special  cases,  but 
are  otherwise  inoperative.  When  they  do  operate,  their  falsehood  viti- 
ates the  formation  of  the  contract  and  makes  it  voidable.     (2)  "Condi- 

64  GLAHOLM  V.  HATS,  2  Man.  &  G.  257. 

66  SEEGER  V.  DUTHIE,  8  C.  B.  (N.  S.)  45;  TARRABOCHIA  v.  HICKLE, 
1  Hurl.  &  N.  183. 

5  6  See  Ajison,  Cont  (8tli  Ed.)  149. 


212  REALITY   OF  CONSENT.  (Ch.  7 

tions"  are  either  statements  or  promises  which  form  the  basis  of  the 
contract.  Whether  or  not  a  term  in  the  contract  amounts  to  a  con- 
dition must  be  a  question  of  construction,  to  be  answered  by  ascertain- 
ing the  intention  of  the  parties  from  the  wording  of  the  contract  and 
the  circumstances  under  which  it  was  made.  But  when  a  term  in  the 
contract  is  ascertained  to  be  a  condition,  then,  whether  it  be  a  state- 
ment or  a  promise,  the  untruth  or  the  breach  of  it  will  entitle  the  party 
to  whom  it  is  made  to  be  discharged  from  his  liabilities  under  the  con- 
tract. (3)  "Warranties,"  used  in  "the  narrower  sense,"  are  independent 
subsidiary  promises,  the  breach  of  which  does  not  discharge  the  con- 
tract, but  gives  to  the  injured  party  a  right  of  action  for  such  damage 
as  he  has  sustained  by  the  failure  of  the  other  to  fulfill  his  promise. 
(4)  A  condition  may  be  broken,  and  the  injured  party  may  not  avail 
himself  of  his  right  to  be  discharged,  but  continue  to  take  benefit  under 
the  contract,  or,  at  any  rate,  to  act  as  though  it  were  still  in  operation. 
In  such  a  case  the  condition  sinks  to  the  level  of  a  warranty,  and  the 
breach  of  it,  being  waived  as  a  discharge,  can  only  give  a  right  of  action 
for  the  damage  sustained.**'  This  is  sometimes  called  a  "warranty  ex  ■  +• 
post  facto."     .  ■      ■  •     ■   ,-trX, 

A  strong  illustration  of  the  tendency  of  the  courts  to  bring  a  state- 
ment material  enough  to  afifect  consent  into  the  terms  of  the  contract 
is  ofifered  by  an  English  case  arising  out  of  a  sale  of  hops  by  the  plaintiff 
to  the  defendant.  It  appeared  that,  before  commencing  to  deal,  the 
defendant  asked  the  plaintiff  if  any  sulphur  had  been  used  in  the  treat- 
ment of  that  year's  crop.  The  plaintiff  said,  "No."  The  defendant 
said  that  he  would  not  even  ask  the  price  if  any  sulphur  had  been  used. 
After  this  the  parties  discussed  the  price,  and  the  defendant  agreed 
to  purchase  the  crop  of  that  year.  He  afterwards  repudiated  the  con- 
tract on  the  ground  that  sulphur  had  been  used,  and  the  plaintiff  sued 
for  the  price.  It  was  shown  that  the  plaintiff  had  used  sulphur  over 
5  acres,  the  entire  growth  consisting  of  300  acres.  He  had  used  it 
for  the  purpose  of  trying  a  new  machine,  had  afterwards  mixed  the 
whole  growth  together,  and  had  either  forgotten  the  matter  or  thought 
it  unimportant.  The  jury  found  that  the  representation  made  by  the 
plaintiff  as  to  the  use  of  sulphur  was  not  willfully  false,  and  they 
further  found  that  "the  affirmation  that  no  sulphur  had  been  used  was 
intended  by  the  parties  to  be  a  part  of  the  contract  of  sale,  and  a  war- 
ranty by  the  plaintiff."  The  court  had  to  consider  the  effect  of  this 
finding,  and  came  to  the  conclusion  that  the  representation  of  the 
plaintiff  was  a  part  of  the  contract,  and  a  preliminary  condition,  the 
breach  of  which  entitled  the  defendant  to  be  discharged  from  liability. 
Erie,  C.  J.,  said :  "We  avoid  the  term  'warranty'  because  it  is  used  in 
two  senses,  and  the  term  'condition'  because  the  question  is  whether 

87  Avery  v.  Willson,  81  N.  Y.  341,  37  Am.  Rep.  503;   post,  p.  4CS. 


I 


§§  135-138)  MISREPRESENTATION.  213 

that  term  is  applicable.  Then  the  effect  is  that  the  defendants  required, 
and  that  the  plaintiff  gave,  his  undertaking  that  no  sulphur  had  been 
used.  This  undertaking  was  a  preliminary  stipulation ;  and,  if  it  had 
not  been  given,  the  defendants  would  not  have  gone  on  with  the  treaty 
which  resulted  in  the  sale.  In  this  sense  it  was  the  condition  upon 
which  the  defendants  contracted,  and  it  would  be  contrary  to  the  inten- 
tion expressed  by  this  stipulation  that  the  contract  should  remain  valid 
if  sulphur  had  been  used.  The  intention  of  the  parties  govprus^n 
the  making;_and.  iii-tlie  construction  of  all  contracts.  If  the  parties  so 
inten^Tthe  sale  may  be  absolute,  with  a  warranty  superadded ;  or  the 
sale  may  be  conditional,  to  be  null  if  the  warranty  is  broken.  And, 
upon  this  statement  of  facts,  we  think  that  the  intention  appears  that 
the  contract  should  be  null  if  sulphur  had  been  used ;  and  upon  this 
ground  we  agree  that  the  rule  should  be  discharged."  *** 

Conclusion  as  to  Effect  of  Misrepresentation. 

From  what  has  been  shown,  we  may  state  the  rule  as  to  misrepre- 
sentations in  this  way :  Whenever  the  validity  of  a  contract  is  called 
in  question,  or  the  liabilities  of  the  parties  are  said  to  be  affected,  by 
reason  of  representations  made  before  or  at  the  time  of  entering  into 
the  contract,  the  effect  of  the  representation  will  depend  on  the  answers 
to  the  following  questions :  (i)  Were  the  statements  in  question  a 
part_of  the  terms  of  the  contract?  (2)  If  not,  were  they  made_ fraudu- 
lently? (3)  If  neither  of  these,  was  the  contract~one"of  that  class  of 
contracts  called  "contracts  uberrimse  fidei_,"  in  which  one  of  the  parties 
had  to  rely  peculiany~on  the  other  for  his  knowledge  of  material  facts, 
and  the  other  was  bound  to  the  most  perfect  good  faith?  If  all  of 
these  questions  are  answered  in  the  negative,  the  representation  has  no 
effect  at  all. 

Excepted  Contracts  Affected  by  Mere  Misrepresentation. 

To  the  general  rule  that  misrepresentations  not  amounting  to  fraud, 
and  not  forming  a  term  of  the  contract,  do  not  affect  its  validity,  ther? 
are  exceptions  in  case  of  certain  special  contracts  sometimes  said  to 
be  uberrimae  fidei ;  that  is,  contracts  of  such  a  character  that  one  of  the 
parties  must  rely  on  the  other  for  his  knowledge  of  the  facts.  As  the 
term  implies,  the  most  perfect  good  faith  is  required  in  such  cases, 
and  any  material  misstatement  or  concealment  of  facts,  even  though 
innocent,  will  avoid  the  contract. 

Same — Contracts  of  Insurance. 

Among  these  excepted  contracts  are  contracts  of  insurance.  In 
the  case  of  a  contract  of  marine  insurance  the  assured  is  bound  to 
give  the  insurer  all  such  information  as  would  be  likely  to  affect 
his  judgment  in  accepting  the  risk,  and  misrepresentation  or  nondis- 

68  Baunerman  v.  White,  10  C.  B.  (N.  S.)  8G0. 


2li  REALITY   OF  COXSEXT.  (Cll.  7 

closure  of  an}^_ju.ch.  .matter,  tlioilgh-perfectly  innocent,  will- vkiate  the 
pohcy?^  As  said  by  the  Ohio  Court:  "The  assured  is  bound  to 
■communicate  every  material  fact  within  his  knowledge  not  known,  or 
presumed  to  be  known,  to  the  underwriter,  whether  inquired  for  or  not ; 
and  a  failure  in  either  particular,  although  it  might  have  arisen  from 
mistake,  accident,  or  forgetfulness,  is  attended  with  the  rigorous  con- 
sequence that  the  policy  never  attaches,  and  is  void,  for  the  reason  that 
the  risk  assumed  is  not  the  one  intended  to  be  assumed  by  the  par- 
ties." ®**  Thus,  a  policy  of  marine  insurance  has  been  avoided  because 
the  goods  were  insured  for  an  amount  considerably  in  excess  of  their 
value,  though  the  fact  of  overvaluation  did  not  affect  the  risks  of  the 
voyage,  simply  because  the  valuation  is  a  fact  usually  taken  into  con- 
sideration by  underwriters,®^ 

It  is  said  that  the  doctrine  applicable  to  marine  insurance  does  not 
apply,  to  the  full  extent,  to  other  contracts  of  insurance. ^^  It  is  set- 
tled, however,  that  any  false  representation  of  a  material  fact,  how- 
ever innocently  made,  will  avoid  the  policy.®^  It  has  even  been 
held,  in  cases  where  the  fact  undisclosed  was  peculiarly  within  the 
knowledge  of  the  insured,  and  not  such  as  to  be  patent  on  examina- 
tion, that  the  innocent  nondisclosure  of  a  material  fact  will  vitiate 
the  policy.  Where,  for  instance,  one  fire  insurance  company  reinsured 
a  risk  in  another  company  without  informing  the  latter  that  it  had 
heard  that  the  assured,  or  at  least  some  one  of  the  same  name,  had 
been  so  unlucky  as  to  have  had  several  fires,  in  each  of  which  he  was 
heavily  insured,  it  was  held  that  such  nondisclosure,  though  uninten- 
tional, vitiated  the  contract  of  reinsurance.®*  Where,  however,  as  is 
now  generally  the  practice,  written  applications  for  insurance  are  re- 
quired, in  which  specific  questions  are  asked  and  answered,  an  innocent 
failure  to  disclose  facts  about  which  no  inquiry  is  made  will  not  avoid 

69  McLanahan  v.  Insurance  Co.,  1  Pet.  170,  7  L.  Ed.  98;  Lewis  v.  Insurance 
Co.,  10  Gray  (Mass.)  508;  Ely  v.  Hallett.  2  Caines  (N.  Y.)  57;  Stoney  v.  Insur- 
ance Co.,  Harp.  (S.  C.)  235;  Lexington  Fire,  Life  &  Marine  Ins.  Co.  v.  Paver, 
16  Ohio,  324;  Vale  v.  Insurance  Co.,  1  Wash.  C.  C.  283,  Fed.  Cas.  No.  16,811; 
Augusta  Ins.  &  Banking  Co.  v.  Abbott,  12  Md.  348. 

60  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452,  at  page  462,  59 
Am.  Dec.  684. 

61  lonides  v.  Pender,  L.  R.  9  Q.  B.  537. 

6  2  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.,  at  page  4a3.  59  Am. 
Dec.  684.  And  see  Burritt  v.  Insurance  Co.,  5  Hill  (N.  Y.)  188,  40  Am.  Dec. 
345;  Wineland  v.  Insurance  Co.,  53  Md.  276;  United  States  Fire  &  Marine 
Ins.  Co.  V.  Kimborly,  34  Md.  224.  6  Am.  Rep.  325. 

63  Armour  v.  Insurance  Co.,  DO  N.  Y.  450. 

64  New  York  Bowery  Fire  Ins.  Co.  v.  Insurance  Co.,  17  Wend.  (N.  Y.)  359. 
And  see  WALDEN  v.  INSURANCE  CO.,  12  La.  134,  32  Am.  Dec.  116;  Curry  v. 
Insurance  Co.,  10  Pick.  (Mass.)  535,  20  Am.  Dec.  547;  Fowler  v.  Insurance  Co., 
6  Cow.  (N.  Y.)  673,  16  Am.  Dec.  400;  Bobbitt  v.  Insm-ance  Co.,  66  N.  C.  70,  8 
Am.  Rep.  494. 


§§  135-138)  MISREPKESENTATION.  215 

the  policy,  though  it  is  otherwise  where  there  is  an  innocent  failure  to 
disclose  a  fact  where  inquiry  is  made.®^ 

In  England  and  in  some  of  our  states  a  distinction  has  been  drawn 
between  life  insurance  and  marine  and  fire  insurance,  and  life  insurance 
has  been  said  not  to  be  within  the  exception  to  the  rule  that  innocent 
misrepresentation  docs  not  avoid  a  contract.^"  In  most  of  our  states, 
however,  no  distinction  is  made  in  this  respect  between  life  and  fire 
insurance,  misrepresentation  of  a  material  fact,  whether  innocent  or 
fraudulent,  avoiding  the  policy.*' 

Even  in  England  the  tendency  of  the  modern  adjudications  is  towards 
applying  the  doctrine  that  innocent  misrepresentation,  including  non- 
disclosure, vitiates  a  contract  of  fire  or  life,  as  well  as  marine,  insurance, 
without  any  practical  distinction.^* 

Same — Contracts  for  the  Sale  of  Land. 

It  is  said  by  Sir  William  Anson  that  contracts  for  the  sale  of  land 
are  uberrimae  fidei,  and  therefore  within  the  exception  to  the  rule  that 
innocent  misrepresentation  does  not  afifect  the  validity  of  the  contract ; 
but  this  is  so  only  to  a  very  limited  extent,  even  in  England, ''^  and  prob- 
ably to  a  less  extent  in  this  country.  As  a  rule,  the  courts  of  law  with 
us  recognize  no  distinction  in  this  respect  between  contracts  for  the  sale 
of  land  and  other  contracts.'^''  A  purchaser  of  land,  it  has  been  held, 
is  not  bound  to  disclose  facts  within  his  knowledge  which  render  the 
land  worth  much  more  than  the  price  he  offers ;  as,  for  instance,  the 
fact  that  there  is  a  valuable  mine  under  it.'^^  It  has,  however,  been  held 
that  a  misdescription  of  the  land,  or  of  the  title,  or  of  the  terms  to 
which  it  is  subject,  though  made  without  any  fraudulent  intention, 

65  Green  v.  Insurance  Co.,  10  Pick.  (Mass.)  402;  Com.  v.  Insurance  Co.,  112 
Mass.  136,  17  Am.  Kep.  72;  Washington  Mills  Mfg.  Co.  t.  Insurance  Co.,  135 
Mass.  505;  Burritt  v.  Insurance  Co.,  5  Hill  (N.  Y.)  188,  40  Am.  Dec.  345; 
Bro'wning  v.  Insurance  Co.,  71  N.  Y.  508,  27  Am.  Rep.  8G;  North  American  Ins. 
Co.  V.  Thi-oop,  22  Mich.  146,  7  Am.  Rep.  638 ;  Clark  v.  Insurance  Co.,  8  How. 
249,  12  L.  Ed.  1061;  Ripley  v.  Insurance  Co.,  30  N.  Y.  136,  86  Am.  Dec.  362; 
Short  V.  Insurance  Co.,  90  N.  Y.  16,  43  Am.  Rep.  138. 

6  6  Wbulton  V.  Hardesty,  8  El.  &  Bl.,  at  page  299;  Schwarzbach  v.  Protec- 
tive Union.  25  W.  Va.  655,  52  Am.  Rep.  227. 

6T  Bliss,  Ins.  75;  Vose  y.  Insurance  Co.,  6  Cush.  (Mass.)  42;  Campbell  v. 
Insurance  Co.,  98  Mass.  381,  at  page  396 ;  Goucher  v.  Association  (C.  C.)  20 
Fed.  596;  New  York  Life  Ins.  Co.  v.  Fletcher,  117  U.  S.  519,  6  Sup.  Ct.  837, 
29  L.  Ed.  934 ;  Mutual  Ben.  Life  Ins.  Co.  v.  Wise,  34  Md.  582 ;  .^tna  Life  Ins. 
Co.  V.  France,  91  U.  S.  512.  23  L.  Ed.  401.  See  PHCENIX  MUT.  LIFE  INS.  CO. 
V.  RADDIN,  120  U.  S.  183,  7  Sup.  Ct  500,  30  L.  Ed.  044 ;  Cable  v.  Insurance 
Co.,  Ill  Fed.  19,  49  C.  C.  A.  216. 

6  8  London  Assurance  v.  Mansel,  41  Law  T.  (N.  S.)  225. 

6  0  2  Add.  Cont.  §  538 ;   1  Sugd.  Vend.  8. 

TO  Livingston  v.  Iron  Co.,  2  Paige,  Ch.  (N.  Y.)  392;  Williams  v.  Spurr,  24 
Mich.  335. 

T'  Note  91,  infra., 


216  REALITY   OF   CONSENT.  (Ch.  7 

will  avoid  the  contract.^^  Courts  of  equity  have  granted  or  refused 
their  peculiar  remedies  in  the  case  of  contracts  for  the  sale  of  land 
because  of  innocent  misrepresentation/^  but  this  has  been  because  of 
principles  peculiar  to  equity,  and  not  because  of  the  nature  of  the  con- 
tract. The  same  principles  have  been  applied,  and  the  same  relief 
granted  or  refused,  in  the  case  of  other  contracts. 

Same — Contracts  to  Purchase  Shares  in  Companies. 

Another  exception  is  in  the  case  of  contracts  with  the  promoters  of 
a  corporation  for  the  purchase  of  shares.  It  is  said  in  an  English  case : 
"Those  who  issue  a  prospectus  holding  out  to  the  public  the  great  ad- 
vantages which  will  accrue  to  persons  who  will  take  shares  in  a  pro- 
posed undertaking,  and  inviting  them  to  take  shares  on  the  faith  of 
the  representations  therein  contained,  are  bound  to  state  everything 
with  strict  and  scrupulous  accuracy,  and  not  only  to  abstain  from 
stating  as  fact  that  which  is  not  so,  but  to  omit  no  one  fact  within 
their  knowledge,  the  existence  of  which  might  in  any  degree  affect  the 
nature,  extent,  or  quality  of  the  privileges  and  advantages  which  the 
prospectus  holds  out  as  inducements  to  take  shares."  ''*  As  said  in  a 
New  York  case,  the  promoters  of  a  corporation  occupy  before  its 
organization  a  position  of  trust  and  confidence  towards  those  whom 
they  seek  to  induce  to  invest  in  the  enterprise.'^  ° 

Same — Confidential  Relations  in  General. 

All  contracts,  whatever  may  be  the  subject-matter,  are  uberrimse 
fidei,  where  the  parties  occupy  a  confidential  relation  towards  each  other, 
as  in  the  case  of  contracts  between  an  attorney  and  his  client,  a  prin- 
cipal and  his  agent,  a  trustee  and  his  cestui  que  trust,  a  guardian  and 
his  ward,  a  parent  and  his  child,  etc.  The  parties  in  such  a  case  do 
not  stand  on  equal  ground ;  one  of  them  reposes  confidence  in  the  other, 
and  the  latter,  in  dealing  with  the  former,  is  held  to  the  utmost  good 
faith,  and  can  gain  no  advantage  by  his  dealings.     Any  misrepresen- 

72  Flight  V.  Booth,  1  Bing.  N.  C.  370;  Jones  v.  Edney,  3  Camp.  285;  In  re 
Fawcett  «&  Holmes,  42  Ch.  Div.  156;  Rayner  v.  Wilson,  43  Md.  440;  McKln- 
non  V.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6  L.  R.  A.  121,  17  Am.  St.  Rep.  178; 
Munroe  v.  Pritchett,  16  Ala.  785,  50  Am.  Dec.  203;  Rimer  v.  Dugan,  39  Miss. 
477,  77  Am.  Dec.  687;  Tyson  v.  Passmore,  2  Pa.  122,  44  Am.  Dec.  181;  Keating 
V.  Price,  58  Md.  532,  at  page  536;  Gunby  v.  Sluter,  44  Md.  237;  Foley  v.  Crow, 
37  Md.  51;  Mitchell  v.  McDoiigall,  62  111.  498;  Baughman  v.  Gould,  45  Mich. 
481,  8  N.  W.  73;  Smith  v.  Richards,  13  Pet.  26,  10  L.  Ed.  42;  Mulvey  v.  King, 
39  Ohio  St.  491. 

7  3  Price  V.  McCauley,  19  13ng.  Law  &  Eq.  162;  O'Rourk  v.  Percival,  2  Ball 
&  B.  58;  Brooks  v.  Hamilton,  15  Minn.  26  (Gil.  10);  Mohler  v.  Carder,  73 
Iowa,  .582,  35  N.  W.  647;  Watson  v.  Baker,  71  Tex.  739,  9  S.  W.  867. 

7  4  New  Brunswick  &  C.  R.  Co.  v.  Muggeridge,  1  Drew.  &  S.  381.  And  see 
Venezuela  R.  Co.  v.  Kisch,  L.  R.  2  II.  L.  113;  Peck  v.  Gurney,  L.  R.  6  H.  L. 
403. 

7  6  Brewster  v.  Hatch,  122  N.  Y.  349,  25  N.  E.  505,  19  Am.  St.  Rep.  49S. 


§'i  136-138)  MISREPRESENTATION.  217 

tation  or  nondisclosure  of  material  facts  will  vitiate  a  contract  between 
them.''®  All  the  exceptions  to  the  rule  that  innocent  misrepresentation 
does  not  avoid  a  contract  are  based  on  the  fact  that  a  relation  of  confi- 
dence exists  between  the  parties.''^ 

Same — Contracts  of  Suretyship. 

The  contract  of  suretyship  has  sometimes  been  treated  as  being 
within  this  excepted  class  of  contracts,  but  as  regards  the  formation 
of  the  contract  it  is  not  really  so.  To  vitiate  such  a  contract  the  mis- 
representation or  nondisclosure  must  amount  to  fraud ;  but  we  shall 
see,  in  treating  of  fraud,  that  nondisclosure  of  facts  which  there  is  a 
duty  to  disclose  is  sometimes  regarded  as  fraud,  without  regard  to  the 
question  of  motive  or  design. '''^  Where  the  contract  of  suretyship  has 
once  been  formed,  the  surety  is  entitled  to  be  informed  of  any  agreement 
between  the  creditor  and  the  debtor  which  alters  their  relations,  or  any 
circumstance  which  would  give  him  a  right  to  avoid  the  contract.''^ 
Failure  of  the  creditor  to  give  such  information  does  not  affect  the 
formation  of  the  contract,  but  merely  discharges  the  surety  from  any 
further  liability,  and  therefore  the  question  has  nothing  to  do  with  our 
present  discussion. 

Agent's  Warranty  of  Authority. 

To  the  rule  that  an  innocent  misrepresentation  has  no  effect  upon 
the  liabilities  of  the  parties  another  exception  must  be  noted.  A  person 
who  contracts  as  agent  in  effect  represents  that  he  has  the  authority  of 
his  principal,  and  if  the  representation  is  untrue  he  is  liable  to  the 
other  party  for  any  resulting  loss,  even  if  he  acted  in  good  faith  and 
in  the  belief  that  he  had  authority.  By  a  fiction,  the  professed  agent 
is  deemed  to  warrant  his  authority.^* 

Effect  in  Equity. 

This  rule  as  to  the  effect  of  misrepresentations  is  not  adhered  to  in 
courts  of  equity.     A  false  statement  made  by  one  of  the  parties  to  the 

7  6  Brooks  V.  Martin,  2  Wall.  70,  at  page  84,  17  L.  Ed.  732 ;  Baker  v.  Humph- 
rey, 101  U.  S.  494,  at  page  502,  25  L.  Ed.  1065 ;  James  v.  Steere,  16  R.  I.  367, 
16  Atl.  143,  2  L.  R.  A.  164;  Smith  v.  Davis,  49  Md.  470;  McConkey  v.  Cockey, 
69  Md.  286,  14  Atl,  465;  Reed  v.  Peterson,  91  111.  288;  Ward  v.  Armstrong, 
84  111.  151;  Zeigler  v.  Hughes,  55  111.  288;  Norris  v.  Tayloe,  49  111.  17,  95  Am. 
Dec.  568;  Gasey  v.  Casey,  14  111.  112;  note  227,  infra. 

7  7  2  Pom.  Eq.  Jur.  §  902. 

7  8  North  British  Ins.  Co.  v,  Lloyd,  10  Exch.  523;  Atlas  Bank  v.  Brownell, 
9  R.  I.  168,  11  Am.  Rep.  231;  Hamilton  v.  Watson,  12  Clark  &  F.  109;  Guard- 
ian Fire  &  Life  Assur.  Co.  v.  Thompson,  68  Cal.  208,  9  Pac.  1;   post,  p.  221. 

79  Phillips  V.  Foxall,  L.  R.  7  Q.  B.  666;  Roberts  v.  Donovan,  70  Cal.  108,  11 
Pac.  599;  Evans  v.  Kneeland,  9  Ala.  42.  But  see  Atlantic  &  P.  Telegraph 
Co.  V.  Barnes,  64  N.  Y.  385,  21  Am.  Rep.  621;  Jones  v.  U.  S.,  18  Wall.  662,  21 
L.  Ed.  867. 

80  Post,  p.  518. 


218  REALITY   OF   CONSENT.  (Cll.  7 

other  has  been  held  sufficient  ground  for  refusing  specific  perform- 
ance of  the  contract,  though  there  was  no  fraud,  and  the  statement 
was  not  a  term  in  the  contract;  ^^  and  a  false  representation  beheved 
to  be  true  at  the  time  it  was  made,  and  which  was  no  part  of  the  con- 
tract, has  been  held  sufficient  ground  for  setting  the  contract  aside.^^ 

We  have  seen  that  the  tendency  of  the  common-law  courts  is  to  bring 
any  statement  which  is  material  enough  to  affect  consent,  if  possible, 
into  the  terms  of  the  contract. ^^  Where  the  statement  or  representa- 
tion is  of  this  character — that  is,  where  it  is  a  "vital  condition" — equity, 
says  Sir  William  Anson,  will  give  "the  same  relief,  but  upon  a  different 
and  more  intelligible  principle."  In  equity  an  innocent  misrepresenta- 
tion, if  it  furnishes  a  material  inducement,  gives  a  right  to  avoid  or 
j]escind_a_contract  where  capable  of  rescissions!^'*  "    " 

Same — Equitable  Estoppel. 

A  representation  by  a  party  to  a  contract,  relied  upon  by  the  other, 
may,  in  equity,  create  an  estoppel  against  him.  This  is  variously 
termed  an  "estoppel  by  conduct,"  or  an  "estoppel  in_j)ais,"  or  an 
"equitable  estoppel."  Thus,  in  a  suit  based  on  a  promise  to  make  a 
provision  by  will  in  consideration  of  marriage,  the  chancellor,  while 
admitting  that  the  transaction  amounted  to  a  contract,  based  his  deci- 
sion on  "this  larger  principle :  that  where  a  man  makes  a  representation 
to  another,  in  consequence  of  which  that  other  alters  his  position,  or  is 
induced  to  do  any  other  act  which  is  either  permitted  or  sanctioned  by 
the  person  making  the  representation,  the  latter  cannot  withdraw  from 
the  representation,  but  is  bound  by  it  conclusively."  ^^ 

81  Lamare  v.  Dixon,  L.  R.  6  H.  L.  414,  at  page  428. 

82  Traill  v.  Baring,  4  De  Gex,  J.  &  S.  318,  33  L.  J.  Ch.  521;  Redgrave  v. 
Hurd,  20  Cb.  Div.  13;  Newbigging  v.  Adam,  34  Cb.  Div.  582;  Brooks  v.  Hamil- 
ton, 15  Minn.  26  (Gil.  10) ;  Smitb  v.  Ricbards,  13  Pet.  26,  36,  10  L.  Ed.  42 ;  Cow- 
ley V.  Smytb,  46  N.  J.  Law,  380,  50  Am.  Rep.  432;  Florida  v.  Morrison,  44 
Mo.  App.  529;  Alker  v.  Alker  (Sup.)  12  N.  Y.  Supp.  676;  Joice  v.  Taylor,  6 
Gill  &  J.  (:Md.)  54,  25  Am.  Dec.  325;  Taymon  v.  Mitcbell,  1  Md.  Cb.  497;  Kent 
V.  Carcaud,  17  Md.  299;  Keating  v.  Price,  58  Md.  532;  Tbompson  v.  Lee,  31 
Ala.  292 ;  Converse  v.  Blumrich,  14  Micb.  109,  90  Am.  Dec.  230 ;  WILCOX  v. 
UNIVERSITY,  32  Iowa.  367;  Allen  v.  Hart,  72  111.  104;  Twitcbell  v.  Bridge, 
42  Vt.  68 ;  Frenzel  v.  Miller,  37  Ind.  1,  10  Am.  Rep.  62 ;  Bankbead  v.  Alloway, 
6  Cold.  (Tenn.)  56;  Foard  v.  McComb,  12  Busb  (Ky.)  723.  But  see  Tone  v. 
Wilson,  81  111.  529;    Groff  v.  Robrer,  35  Md.  327. 

8  3  Ante,  p.  209. 

R*  Anson,  Contr.  (8tb  Ed.)  155,  156,  citing  Derry  v.  Peak,  14  App.  Cas.  347; 
Newbigging  v.  Adam,  34  Cb.  Div.  582;  Kennedy  v.  Panama,  etc.,  Co.,  L.  R. 
2  Q.  B.  580. 

85  Coverdale  v.  Eastwood,  L.  R.  15  Eq.  121.  And  see  Brown  v.  Wbeeler, 
17  Conn.  345,  44  Am.  Dec.  550;  Tbrall  v.  Tlirall,  60  AVis.  503,  19  N.  W.  353; 
Jobn.son  v.  Hubbell,  10  N.  J.  Eq.  332,  64  Am.  Dec.  773;  Com.  v.  Moltz,  10  Pa. 
527,  51  Am.  Dec.  499;  Cowles  v.  Bacon.  21  Conn.  451.  56  Am.  Dec.  371; 
Scudder  v.  Carter,  43  111.  App.  252;    STEVENS  v.  LUDLUM,  46  Minn,  160, 


;§§  135-138)  MISREPRESENTATION.  219 

What  Amounts  to  a  Representation. 

In  speaking  of  representations  in  entering  into  contracts  of  insurance, 
Mr.  Justice  Story  said :  "To  constitute  a  representation,  there  should 
be  ^an  explicit  affirmation  or  denial  of  a  fact, — of  such  an  allegation 
as  would  irresistibly  lead  the  mind  to  the  same  conclusion.  If  the  ex- 
pressions are  ambiguous,  or  such  as  the  parties  might  fairly  use  without 
intending  to  authorize  a  particular  conclusion,  the  assured  ought  not  to 
be  bound  by  the  conjectures,  or  calculations  of  probability,  of  the  under- 
writer." *« 

A  mere  statement  or  expression  of  opinion  or  statement  of  intention 
will  not  amount  to  a  representation,  the  falsity  of  which  will  avoid  a 
contract.^^  Thus,  in  a  contract  of  marine  insurance,  the  assured  com- 
municated to  the  insurer  a  letter  from  the  master  of  his  vessel,  stating 
that,  in  his  opinion,  the  anchorage  of  the  place  to  which  the  vessel  was 
bound  was  safe.  The 'vessel  was  lost  there,  but  the  court  held  tliat 
the  assured,  in  reading  the  master's  letter  to  the  insurers,  communi- 
cated to  them  all  that  he  himself  knew  of  the  voyage,  and  that  the 
expressions  contained  in  the  letter  were  not  a  representation  of  fact, 
but  an  opinion  which  the  insurers  could  act  upon  or  not,  as  tliey 
pleased.^*  Nor  are  commendatory  expressions,  such  as  men  habitually 
use  in  order  to  induce  others  to  enter  into  a  bargain,  regarded  as  rep- 
resentations of  fact.^^  The  misrepresentation,  to  be  effective  at  all  in 
avoidance  of  the  contract,  must  have  been  relied  upon  by  the  other 
party,  and  have  induced  him  to  enter  into  the  contract,  or,  rather,  it 
must  have  been  one  of  the  inducements.®"  This  will  be  more  fully 
considered  in  treating  of  fraud.  'a^ 

48  N.  W.  771,  13  L.  R.  A.  270,  24  Am.  St.  Rep.  210:    Dickerson  v.  Colgrove, 
100  U.  S.  578,  580,  25  L.  Ed.  618;    The  Ottiimwa  Belle  (D.  C)  78  Fed.  643. 

86  Livingston  v.  Maryland  Ins.  Co.,  7  Ci-anch,  506,  541.  3  L.  Ed.  421. 

87  Dowdall  V.  Canndy,  32  111.  App.  207;  Bryant  v.  Ocean  Ins.  Co.,  22  Pick. 
(Mass.)  200 ;  Rice  v.  Insurance  Co.,  4  Pick.  (Mass.)  439 ;  Allegre's  Adm'rs  v. 
Insurance  Co.,  2  Gill  &  J.  (Md.)  136,  20  Am.  Dec.  424;  Fosdick  v.  Insm-auce 
Co.,  3  Day  (Conn.)  108;  Dennison  v.  Insurance  Co.,  20  Me.  125,  37  Am  Dec. 
42;  Connecticut  Mut.  Life  Ins.  Co.  v.  Luchs,  108  U.  S.  498,  2  Sup.  Ct,  949,  27 
L.  Ed.  800. 

88  Anderson  v.  Insurance  Co.,  L.  R.  7  C.  P.  65. 

89  A  statement  by  an  auctioneer  that  land  which  he  offered  for  sale  was 
"very  fertile  and  improvable,"  whereas,  in  fact,  it  was  in  part  abandoned  as 
useless,  was  held  to  be  "a  mere  flourishing  description  by  an  auctioneer,"  and 
not  such  a  representation  as  would  avoid  the  sale.  Dimmock  v.  Hallett.  L. 
R.  2  Ch.  21,  27.  But  on  the  sale  of  an  hotel  it  was  held  that  the  contract  was 
avoided  by  a  false  statement  that  the  present  lessee  was  "a  most  desirable 
tenant."  Smith  v.  Property  Co.,  28  Ch.  Div.  7.  And  see  Tuck  v.  Downing, 
76  111.  71.     See,  also,  post,  p.  227. 

»o  Tuck  v.  Downing,  76  111.  71;  Fauntleroy  v.  Wilcox,  80  111.  477;  Slaughter 
V.  Gerson,  13  Wall.  379,  20  L.  Ed.  627;  post,  p.  232. 


V 


v 


220  REALITY   OF   CONSENT.  (GL  7 


FRATTD. 

139.  Frand  is  a  false  representation  of  a  material  fact,  or  nondis- 
closure of  a  material  fact  under  sucli  circumstances  tliat  it 
amounts  to  a  false  representation,  made  ipitli  kno'wledge  of  its 
falsity,  or  in  reckless  disregard  of  -whether  it  is  true  or  false,  or 
as  of  personal  knoivledge,  ivith  the  intention  that  it  shall  be 
acted  upon  hy  the  other  party,  and  ivhich  is  acted  upon  by  him 
to  his  injury.     In  detail: 

(a)  There  must,  as  a  rule,  be  a  false  representation,  and  not  a  mere 

nondisclosure;    but  nondisclosure  or  concealment  is  equivalent 
to  a  false  representation— 

(1)  Where   active   steps   are  taken  to   prevent   discovery   of   the 

truth. 

(2)  Where,  though  the  representation  made  is  true  as  far  as  it 

goes,  the  suppression  of  facts  I'enders  it  in  fact  untrue. 

(3)  Where,  under  the  circumstances,  there  is  a  duty  to  disclose 

the  facts  suppressed,  so  that  failure  to  disclose  them  is  an 
implied  representation  that  they  do  not  exist. 

(b)  The  repriesentation  must  be  of  a  past  or  existing  fact;   and  there- 

fore fraud  cannot  result  from — 
(1)    Expressions  of  opinion,  belief,  or  expectation^ 

Promises    or    expressions    of    intention,       A    representation, 
how^ever,  that  a  certain  intention  exists,  when  it  does  not 
exist,  is  a  false  representation  of  an  existing  fact. 
(3)    Representations  as  to  the  law,  as  a  rule. 

(c)  The  representation  must  be  of  a  material  fact. 

(d)  The  representation  must  be  of  such  a  character,  or  must  be  made 

under  such  circumstances,  that  the  other  party  has  a  right  to 
rely  on  it.     Fraud,  therefore,  cannot  be  predicated  upon — 

(1)  Commendatory    expressions   as    to   value,   prospects,   and   the 

like. 

(2)  False  representations  in  cases  w^here  the  means  of  knowledge 

are  at  hand,  but  the  other  party   does   not  use   them   (in 
some  jurisdictions). 

(e)  The  representation  must  be  made  w^ith  know^ledge  of  its  falsity. 

It  is  regarded  as  "knowingly"  false— 

(1)  If  actually  know^n  to  be  false. 

(2)  If  made  in  reckless  disregard  of  w^hether  it  is  true  or  false. 

(3)  If  the  fact  is  susceptible  of  know^ledge,  and  the  representa- 

tion is  made  as  of  the  party's  personal  knowledge  (in  most 
jurisdictions). 

(f)  The  representation  need  not  be  made  directly  to  the  other  party, 

but  it  must  be  intended  to  reach  him,  and  to  be  acted  upon  by 
him. 

(g)  The  representation  must  deceive;    that  is,  it  must  be  relied  upon 

by  the  other  party,  and  must  induce  him  to  act. 
(h)    It  must  result  in  injury. 

Fraud  is  a  False  Representation. 

Subject  to  exceptions  to  be  presently  explained,  a  mere  nondisclosure 
of  fact,  without  more,  is  not  fraud,  whatever  the  intention  may  be. 
There  must  be  some  active  attempt  to  deceive,  either  by  a  statement 


§  139)  FRAUD.  221 

which  is  false,  or  by  a  representation,  true  as  far  as  it  goes,  but  accom- 
panied with  such  a  suppression  of  facts  as  to  make  it  convey  a  false 
impression,  or  else  there  must  be  a  concealment  of  facts  which  the 
party  is  under  a  duty  to  disclose. 

Mere  silence  or  nondisclosure  of  facts  may  be  such  a  misrepresenta- 
tion as  will  avoid  a  contract  uberrimse  fidei,  but  otherwise  it  generally 
has  no  effect,  whatever  may  be  the  intention  in  failing  to  make  the  dis- 
closure. Nondis^^losure,  even  with  intent  to  deceive,  does  not  amount 
to  a  fraud  which  will  render  a  contract  voidable,  or  sustain  an  action 
for  deceit,  unless  there  is  active  concealment  or  a  suppression  of  facts 
which  there  is  a  duty  to  disclose. °^  For  instance,  in  an  English  case, 
where  the  defendant  had  let  to  the  plaintiff  a  house  which  he  knew 
was  required  for  immediate  occupation,  without  disclosing  that  it  was 
in  a  ruinous  condition  and  unfit  for  habitation,  it  was  held  that  an 
action  for  fraud  would  not  lie.  "It  is  not  pretended,"  it  was  said, 
"that  there  was  any  warranty,  express  or  implied,  that  the  house  was 
fit  for  immediate  occupation ;  but  it  is  said  that,  because  the  defendant 
knew  that  the  plaintiff'  wanted  it  for  immediate  occupation,  and  knew 
that  it  was  in  an  unfit  and  dangerous  state,  and  did  not  disclose 
that  fact  to  the  plaintiff,  an  action  of  deceit  will  lie.  The  declaration 
does  not  allege  that  the  defendant  made  any  misrepresentation,  or  that 
he  had  reason  to  suppose  that  the  plaintiff  v/ould  not  do  what  any  man 
in  his  senses  would  do,  viz.  make  proper  investigation,  and  satisfy  him- 
self as  to  the  condition  of  the  house  before  he  entered  upon  the  occu- 
pation of  it.     There  is  nothing  amounting  to  deceit."  ®^ 

The  fact  that  the  purchaser  of  goods  fails  to  disclose  the  fact  that  he 
is  insolvent  does  not  amount  to  fraud  if  he  intends  to  pay  for  them, 
and  is  not  asked  as  to  his  financial  condition.®^     If,  however,  at  the 

81  Peek  V.  Gnrney,  L.  R.  6  H.  L.  403;  Dambmann  v.  Sehulting,  75  N.  Y.  55; 
People's  Bank  of  City  of  New  York  v.  Bogart,  81  N.  Y.  103,  37  Am.  Rep.  481; 
HacUey  v.  Importing  Co.,  13  Ohio  St.  502,  82  Am.  Dec.  454 ;  Rison  v.  Newber- 
ry, 90  Va.  513,  18  S.  E.  916;  LAIDLAW  v.  ORGAN,  2  Wheat  178,  4  L.  Ed. 
214;  Williams  v.  Spurr,  24  Mich.  335;  Crowell  v.  Jackson,  53  N.  J.  Law,  G56,  23 
Atl.  426;  Cleaveland  v.  Richardson,  132  U.  S.  318,  10  Sup.  Gt.  100,  33  L.  Ed. 
384;  Cochrane  v.  Halsey,  25  Minn.  52;  West  v.  Anderson,  9  Conn.  107,  21 
Am.  Dec.  737;  Juzan  v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Coddington  v. 
Goddard,  16  Gray  (Mass.)  463.  Failure  of  the  purchaser  of  land  to  disclose  to 
the  vendor  the  fact  that  there  is  mineral  under  it  does  not  amount  to  fraud. 
Harris  v.  Tyson,  24  Pa.  347,  64  Am.  Dec.  661;  Butler's  Appeal,  26  Pa.  63; 
Smith  V.  Beatty,  37  N.  C.  456,  40  Am.  Dec.  435.  See,  also,  as  to  concealment 
by  purchaser,  Neill  v.  Shamburg,  158  Pa.  263,  27  Atl.  992;  ante,  p.  217,  note 
78. 

9  2  Keates  v.  Lord  Cadogan,  10  C.  B.  591.  See,  also,  Fisher  v.  Lighthall,  4 
Mackey  (D.  C.)  82;  Lucas  v.  Coulter,  104  Ind.  81,  8  N.  E.  622;  Foster  v. 
Peyser,  9  Gush.  CNIass.)  242,  57  Am.  Dec.  43. 

S3  Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501;  Powell  v.  Brad- 
lee,  9  Gill  &  J.  (Md.)  220;    Morrill  v,  Blackman,  42  Conn.  324;    Zucker  V. 


222  REALITY   OF  CONSENT.  (Ch.  7 

time  of  the  purchase,  he  does  not  intend  to  pay,  he  is  guilty  of  fraud, 
for  he  impliedly  represents  that  he  does  intend  to  pay;  ^*  and  it  has 
been  held  by  a  number  of  courts  that,  if  he  has  no  reasonable  expecta- 
tion of  being  able  to  pay,  it  is  equivalent  to  an  intention  not  to  pay."' 
Active  efforts  to  conceal  a  fact — as,  for  instance,  where  obstacles  are 
thrown  in  the  way  to  prevent  the  other  party's  inquiries  from  resulting 
in  its  discovery,  or  his  attention  is  diverted  for  such  a  purpose — are 
equivalent  to  a  false  representation.^®  So,  also,  if  a  person  makes  a 
representation  as  to  facts  which  is  true  as  far  as  it  goes,  but  intention- 
ally suppresses  other  facts  so  as  to  make  the  representation  convey 
a  false  impression,  this  is  a  false  representation,  and  not  a  mere  non- 
disclosure. The  concealment  or  withholding  of  that  which  is  not  stated 
makes  that  which  is  stated  absolutely  false. "'^ 

Karpeles,  88  Mich.  413,  50  N.  W.  373;  Hotchkin  v.  Bank,  127  N.  Y.  329,  27 
N.  E.  1050;  Le  Grand  v.  Bank,  81  Ala.  123,  1  South.  460,  60  Am.  Eep.  140; 
Eeticker  v.  Katzenstein,  26  111.  App.  33;  Bidault  v.  Wales,  20  Mo.  546,  64  Am. 
Dec.  205;   Wilson  v.  White,  SO  N.  C.  280. 

94Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501;  Stewart  v. 
Emerson,  52  N.  H.  301;  Donaldson  v.  Farwell,  93  U.  S.  633,  23  L.  Ed.  993; 
Ex  parte  Whittaker,  10  Ch.  App.  446 ;  Burrill  v.  Stevens,  73  Me.  395,  40  Am. 
Rep.  366;  Belding  Bros.  &  Co.  v.  Frankland,  8  Lea  (Tenn.)  67,  41  Am.  Rep. 
630;  HaiTis  v.  Alcock,  10  Gill  &  J.  CVld.)  226,  32  Am.  Dec.  158;  Wilmot  v. 
Lyon,  49  Ohio  St.  296,  34  N.  E.  720;  Nichols  v.  McMichael,  23  N.  Y.  266;  Far- 
well  V.  Hanchett,  120  111.  573.  11  N.  E.  875;  Brower  v.  Goodyer,  88  Ind.  572; 
Ross  V.  Miner,  64  Mich.  204,  31  N.  W.  185;  Id.,  67  Mich.  410,  35  N.  W.  60; 
Ayres  v.  French,  41  Conn.  142;  Jordan  v.  Osgood,  109  Mass.  457,  12  Am.  Rep. 
731;  Dow  V.  Sanborn,  3  Allen  (Mass.)  181;  Yeager  Milling  Co.  v.  Lawler,  39 
La.  Ann.  572,  2  South,  398 ;  Allen  v.  Hartfield,  76  111.  358 ;  Devoe  v.  Brandt, 
53  N.  Y.  462;  Hennequin  v.  Naylor,  24  N.  Y.  139;  Carnahan  v.  Bailey  (C.  C.) 
28  Fed.  519;  Fechheimer  v.  Baum,  37  Fed.  167,  2  L.  R.  A.  153;  Shipman  v. 
Seymour,  40  Mich.  274;  Wright  v.  Brown,  67  N.  Y.  1;  Bidault  v.  Wales,  20  Mo. 
546,  64  Am.  Dec.  205;  Des  Farges  v.  Pugh,  93  N.  C.  31,  53  Am.  Rep.  446. 
There  are  a  few  decisions  to  the  contrary.  Smith  v.  Smith,  21  Fa.  367,  60 
Am.  Dec.  51;  Bughman  v.  Bank,  159  Pa.  94,  28  Atl.  209;  Bell  v.  Ellis,  33  Cal. 
620. 

»5  Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501 ;  Jaffrey  v.  Brown 
(C.  C.)  29  Fed.  476;  Elsass  v.  Harrington,  28  Mo.  App.  300;  Whittin  v.  Fitz- 
water,  129  N.  Y.  626,  29  N.  E.  298;  Dalton  v.  Thurston,  15  R.  I.  418,  7  Atl. 
112,  2  Am.  St.  Rep.  905.  But  see,  contra,  Com.  v.  Eastman,  1  Cush.  Olass.) 
189,  48  Am.  Dec.  596;  Biggs  v.  Barry,  2  Curt.  259,  Fed.  Cas.  No.  1,402;  Bur- 
rill V.  Stevens,  73  Me.  395,  40  Am.  Rep.  366.  It  has  even  been  held  that  the 
fact  of  insolvency  and  concealment  is  sufficient  to  take  the  case  to  the  jm-y 
on  the  question  of  intention  not  to  pay.  Edson  v.  Hudson,  83  Mich.  450,  47 
N.  W.  347;   Slagle  &  Co.  v.  Goodnow,  45  Minn.  531.  48  N.  W.  402. 

8  6  Croyle  v.  Moses,  90  Pa.  250;  Matthews  v.  Bliss.  22  Pick.  (Mass.)  48; 
Firestone  v.  Werner,  1  Ind.  App.  293,  27  N.  E.  623;  Kenner  v.  Harding,  85 
111.  265,  28  Am.  Rep.  615;  Kohl  v.  Lindley,  39  111.  195,  201,  89  Am.  Dec.  294; 
Cogel  v.  Kniseley,  89  111.  598,  601;   Roseman  v.  Canovan,  43  Cal.  110. 

97  Mallory  v.  Leach,  35  Vt.  156;  Hadley  v.  Clinton  Imp.  Co.,  13  Ohio  St 
502;  Coles  v.  Kennedy,  81  Iowa,  360,  46  N.  W.  1088,  25  Am.  St.  Rep.  503; 
Kidney  v.  Stoddard,  7  Mete.  (Mass.)  252 ;   Newell  v.  Randall,  32  Minn.  171,  19 


§  139)  FRAUD.  223 

Most  exceptions  to  the  rule  that  nondisclosure  is  not  fraud  lie  in  the 
distinction  between  mere  silence  where  there  is  no  duty  to  speak,  and 
concealment  of  facts  which  are  peculiarly  within  the  knowledge  of 
the  party  concealing  them,  and  which,  under  the  circumstances,  he  is 
bound  in  good  faith  to  disclose.  "In  an  action  of  deceit,"  it  has  been 
said  by  the  supreme  court  of  the  United  States,  "it  is  true  that  silence 
as  to  a  material  fact  is  not  necessarily,  as  matter  of  law,  equivalent  to 
a  false  representation.  But  mere  silence  is  quite  different  from  con- 
cealment. 'Aliud  est  tacere,  aliud  celare,' — a  suppression  of  the  truth 
may  amount  to  aT suggestion  of  falsehood.  And  if,  with  intent  to  de- 
ceive, either  party  to  a  contract  of  sale  conceals  or  suppresses  a  material 
fact  which  he  is  in  good  faith  bound  to  disclose,  this  is  evidence  of, 
and  equivalent  to,  a  false  representation,  because  the  concealment  or 
suppression  is,  in  effect,  a  representation  that  what  is  disclosed  is  the 
whole  truth.  The  gist  of  the  action  is  fraudulently  producing  a  false 
impression  upon  the  mind  of  the  other  party;  and,  if  this  result  is 
accomplished,  it  is  unimportant  whether  the  means  of  accomplishing 
it  are  words  or  acts  of  the  defendant,  or  his  concealment  or  suppression 
of  material  facts  not  equally  within  the  knowledge  or  reach  of  the 
plaintiff."  «« 

In  contracts  of  sale,  disclosure  is  not  ordinarily  incumbent  on  the 

N.  W.  972,  50  Am.  Rep.  562;  Van  Houten  v.  Morse,  162  Mass.  414,  3S  N.  E.  705, 
26  L.  R.  A.  430,  44  Am.  St.  Rep.  373.  "If  the  presentation  of  that  which  is  true 
creates  an  impression  which  is  false,  it  is,  as  to  liim  who,  seeing  the  misap- 
prehension, seeks  to  profit  by  it,  a  case  of  false  representation."  Lomerson 
V.  Johnston,  47  N.  J.  Bq.  312,  20  Atl.  675,  24  Am.  St.  Rep.  410.  And  see 
Busch  V.  Wilcox,  82  Mich.  315,  46  N.  W.  940;  Howard  v.  Gould,  28  Vt  523,  67 
Am.  Dec.  728;  Baker  v.  Rockabrand,  118  111.  365,  8  N.  E.  456. 

98  Stewart  v.  Cattle-Ranch  Co.,  128  U.  S.  383.  9  Sup.  Ct.  101,  32  L.  Ed.  439; 
LAIDLAW  V.  ORGAN,  2  Wheat.  178,  4  L.  Ed.  214;  Smith  v.  Countrj-man,  30 
N.  Y.  655;  Griel  v.  Lomax,  89  Ala.  420,  6  South.  741;  Loewer  v.  Harris,  6  C. 
C.  A.  394,  57  Fed.  368;  George  v.  Johnson,  6  Humph.  (Tenn.)  36,  44  Am. 
Dec.  288;  Beard  v.  Campbell,  2  A.  K.  Marsh.  (Ky.)  125,  12  Am.  Dec.  362;  Pee- 
bles V.  Stephens,  3  Bibb  (Ky.)  324,  6  Am.  Dec.  660;  Waters  v.  Mattingley,  1 
Bibb  (Ky.)  244,  4  Am.  Dec.  631;  FISH  v.  CLELAXD,  33  111.  237;  Mitchell  v. 
McDougall,  62  111.  498;  Firestone  v.  Werner,  1  Ind.  App.  293,  27  N.  E.  623. 
A  person  taking  a  bond  for  the  future  good  conduct  of  an  agent  already  in 
his  employment  must  communicate  to  a  surety  his  knowledge  of  the  past 
criminal  conduct  of  such  agent  in  the  course  of  his  past  employment.  The 
mere  nondisclosure  of  such  knowledge,  irrespective  of  motive  or  design,  is  a 
fraud,  which  will  invalidate  the  bond.  Guardian  Fire  &  Life  Assur.  Co.  v. 
Thompson,  68  Cal.  208,  9  Pac.  1;  State  v.  Sooy,  39  N.  J.  Law,  135;  Dinsmore 
V.  Tidball,  34  Ohio  St.  418;  Roberts  v.  Donovan,  70  Cal.  108,  11  Pac.  599. 
See  ante,  p.  217.  A  man  may  avoid  his  promise  to  marry  a  woman  if  she  con- 
cealed from  him  the  fact  that  she  had  previously  given  birth  to  a  bastard 
child,  or  was  of  immoral  character.  Bell  v.  Eaton,  28  Ind.  408,  92  Am.  Dec. 
329;  Palmer  v.  Andrews,  7  Wend.  (N.  Y.)  143;  Berry  v.  Bakeman,  4A  Me.  164; 
Goodall  V.  Thurman,  1  Head  (Tenn.)  208;  Butler  v.  Eschleman,  IS  111.  44; 
Capehart  v.  Carradine,  4  Strob.  (S.  C.)  42;  post,  p.  232. 


224  REALITY   OF   CONSENT.  (Ch.  7 

seller.  The  rule  is  caveat  emptor.®'  It  has  even  been  held  that  the 
seller  is  not  bound  to  communicate  the  existence  of  a  latent  defect, 
such  as  a  hidden  disease  of  an  animal,  unless,  by  act  or  implication,  he 
represents  that  such  defects  do  not  exist.^""  But  it  is  generally  held 
in  this  country  that  the  intentional  nondisclosure  of  such  a  defect  by 
the  seller,  when  he  knows  or  has  reason  to  know  that  it  is  unknown  to 
the  buyer,  is  fraudulent.^"^  So  where  premises  leased  are  infected 
with  a  contagious  disease,  or  otherwise  subject  to  a  nuisance  which  is 
prejudicial  to  life  or  health,  it  has  been  held  that  there  is  a  duty  to 
disclose  the  fact,  and  that  concealment  is  a  fraud. ^"'^ 

Character  of  Representations — Opinion  or  Expectation. 

To  constitute  fraud,  the  representation  must  be  of  a  past  or  existing 
fact.  What  has  been  said  in  treating  of  misrepresentation  is  equally 
applicable  here,  A  mere  expression  of  opinion,  belief,  or  expectation, 
however  unfounded,  will  not  invalidate  a  contract,  nor  give  cause  for 
an  action  for  deceit.^" ^ 

If,  for  instance,  the  seller  of  property  says  it  is  worth  so  much,  this 
is  a  mere  expression  of  opinion  upon  which  the  buyer  may  or  may 

09  Smith  V.  Hughes,  L.  E.  6  Q.  B.  597;  LAIDLAW  v.  ORGAN,  2  Wheat. 
ITS,  4  L.  Ed.  214;  People's  Bailk  of  City  of  New  Yorli  v.  Bogart,  81  N.  Y. 
101,  37  Am.  Rep.  481;    Kintzing  v.  McElrath,  5  Pa.  4G7;    Cogel  v.  Kniseley, 

89  III.  598, 

100  Ward  v.  Hobbs,  3  Q.  B.  Div.  150,  4  App.  Cas.  13 ;  Beninger  v,  Corwin,  24 
N,  J,  Law,  257 ;  Paul  v.  Hadley,  23  Barb.  (N,  Y,)  521 ;  Morris  v.  Thompson, 
85  111.  16. 

101  Hoe  V.  Sanborn,  21  N.  Y,  552,  78  Am.  Dec.  163;  French  v,  Vining,  102 
Mass,  132,  3  Am.  Rep.  440;  Marsh  v.  Webber,  13  Minn.  109  (Gil.  99);  Cecil 
V.  Spurger,  32  Mo.  462,  82  Am.  Dec.  140;  Patterson  v,  Kirkland,  34  Miss. 
423;  Johnson  V,  Wallower,  18  Minn.  288  (Gil.  262);  Cardwell  v.  McClelland, 
3  Sneed  (Tenn.)  150;  AVaters  v.  Mattingley,  1  Bibb  (Ky.)  244,  4  Am.  Dec. 
631;  Maynard  v.  Maynard,  49  Vt.  297;  Paddock  v,  Strobridge,  29  Vt,  470; 
Graham  v.  Stiles,  38  Vt.  578;  Dowling  v.  Lawrence,  58  Wis.  282,  16  N.  W.  552. 
Sale  of  cattle  known  to  be  infected  with  contagious  disease:  Jeffrey  v.  Bige- 
low,  13  Wend.  (N.  Y.)  318,  28  Am.  Dec.  476;  GRIGSBY  v.  STAPLETON,  94 
Mo.  423,  7  S.  W,  421.  The  rule  does  not  apply  if  the  sale  is  "with  all  faults." 
West  V.  Anderson,  9  Conn,  107,  21  Am.  Dec.  737;  Whitney  v,  Boardman,  118 
Mass.  242.  Otherwise  if  seller  makes  efforts  to  prevent  buyer  from  discover- 
ing defects.    West  v.  Anderson,  supra.    Note  96,  supra, 

102  Minor  v.  Sharon,  112  Mass.  477,  17  Am.  Rep.  122;  Cesar  v.  Karutz,  60  N, 
Y,  229 ;   Cutler  v,  Hamlen  (Mass.)  18  N,  E.  397. 

103  Gordon  v.  Parmelee,  2  Allen  (Mass.)  212;  Gordon  v.  Butler,  105  U. 
S.  553,  26  L.  Ed,  1166 ;  Mooney  v.  Miller,  102  Mass.  217 ;  Sawyer  v,  Prickett,  19 
Wall.  146,  22  L.  Ed.  105;  Allen  v.  Hart,  72  111.  104;  Buschman  v,  Codd,  52 
Md,  207 ;  Ellis  v.  Andrews,  50  N.  Y.  83,  15  Am.  Rep.  379 ;  Chrysler  v.  Canaday, 

90  N,  Y.  272,  43  Am.  Rep.  166;  Beard  v,  Bliley,  3  Colo.  App.  479,  34  Pac.  271; 
Montreal  Lumber  Co.  v.  Mihills,  80  Wis.  540,  50  N.  W.  507;  Southern  Develop- 
ment Co.  V.  Silva,  125  U.  S.  247,  8  Sup.  Ct.  881,  31  L.  Ed.  678 ;  SHELDON  v. 
DAVIDSON,  85  Wis,  138,  55  N,  W,  161 ;  Nash  v.  Trust  Co.,  159  Mass.  437,  34 
N.  E,  625;   Reeves  v.  Corning  (C.  C)  51  Fed,  774. 


§  139)  FRAUD.  225 

not  act,  just  as  he  chooses.*'**  So,  also,  where  a  person  makes  a  false 
representation  as  to  the  harvest  which  land  sown  in  certain  crops  will 
produce,^"^  or  as  to  the  cubic  contents  of  a  piece  of  grading  which  he 
employs  another  to  do,^°°  or  as  to  what  it  will  cost  to  build  a  house, ^°^ 
these  are  all  mere  expressions  of  opinion,  and,  as  a  rule,  do  not  amount 
tofraud.^o* 

Same — Statement  of  Intention,  Expectation,  or  Promises. 

A  representation  of  fact  is  a  statement  that  a  thing  was  or  is,  and 
does  not,  therefore,  include  expressions  of  intention  or  expectation,  or 
promises,  or  other  representations  that  a  thing  shall  be.^"^  Notwith- 
standing this,  a  representation  of  intention  may  amount  to  a  fraudulent 
representation.  The  law  makes  a  distinction  between  a  promise  which 
the  promisor,  when  he  makes  it,  intends  to  perform,  and  one  which  he 
intends  to  break.  In  the  first  case  he  represents  truly  enough  his 
intention  that  something  shall  take  place  in  the  future,  while  in  the 
second  case  he  misrepresents  his  existing  intention.  He  not  merely 
makes  a  promise  which  is  ultimately  broken,  but  when  he  makes  it  he 
represents  his  state  of  mind  to  be  other  than  it  really  is.^^°  It  is  there- 
fore, as  we  have  already  seen,  very  generally  held  tliat  if  a  man  buys 

104  Lindsay  Pet.  Co.  v.  Hurd,  L,  R.  5  P.  C.  243;  Simar  v.  Canaday,  53  N.  Y. 
298,  13  Am.  Rep.  523;  Shanks  v.  Whitney,  66  Vt.  405,  29  Atl.  367;  Johnson  v. 
Seymour,  79  Mich.  156,  44  N.  W.  344;  Geddes'  Appeal,  80  Pa.  442;  Doran  v. 
Eaton,  40  Minn.  35,  41  N.  W.  244;  Belz  v.  Keller  (Ky.)  1  S.  W.  420;  Noetling 
V.  Wright,  72  111.  390;  Lockwood  v.  B^tts,  90  Ala.  150,  7  South.  467;  Gordon 
V.  Butler,  105  U.  S.  553,  26  L.  Ed.  1166;  Cagney  v.  Cuson,  77  Ind,  494;  Lynch 
V.  Murphy,  171  Mass.  307,  50  N.  E.  623. 

10  5  Holton  V.  Noble,  83  Cal.  7,  23  Pac.  58. 

106  East  V.  Worthington,  88  Ala.  537,  7  South.  189. 

107  Sweney  v.  Davidson,  68  Iowa,  386,  27  N.  W.  278. 

108  Representations  as  to  the  speed  of  a  horse  not  made  as  of  personal 
knowledge.  State  v.  Cass,  52  N.  J,  Law,  77,  18  Atl.  972.  Representation  that 
a  stallion  will  not  produce  sorrel  colts.  Scroggin  v.  Wood,  87  Iowa,  497,  54 
N.  W.  437.  Representations  as  to  solvency  and  credit.  See  Homer  v.  Perkins, 
124  Mass.  431,  27  Am.  Rep.  677;  Yeager  Milling  Co.  v.  Lawler,  39  La.  Ann.  572, 
2  South.  398;  Childs  v.  Men-ill,  63  Vt.  463,  22  Atl.  626,  14  L.  R.  A.  264.  And 
see  post,  p.  226. 

109  DA  WE  V.  MORRIS,  149  Mass.  188,  21  N.  E.  313,  4  L.  R.  A.  158.  14  Am. 
St.  Rep.  404 ;  Burrell's  Case,  1  Ch.  Div.  552 ;  Knowlton  v.  Keenan,  146  Mass. 
86,  15  N.  E.  127,  4  Am.  St.  Rep.  282;  Saunders  v.  McClintock,  46  Mo.  App. 
2ie';  SHELDON  v.  DAVIDSON.  85  Wis.  138,  55  N.  W.  161;  Lawrence  v. 
Gayetty,  78  Cal.  126,  20  Pac.  382,  12  Am.  St.  Rep.  29 ;  Haenni  v.  Bleisch,  146 
111.  262,  34  N.  E.  153;  Balue  v.  Taylor,  136  Ind.  368,  36  N.  E.  269;  Birmingham 
Warehouse  &  Elevator  Co.  v.  Land  Co.,  93  Ala.  549,  9  South.  235;  Huber  v. 
Guggenheim  (C.  C.)  89  Fed.  598.  But  see  Williams  v.  Kerr,  152  Pa.  560,  25 
Atl.  618;  Moore  v.  Cross  (Tex.  Civ.  App.)  26  S.  W.  122.  Representation  that 
stock  sold  will  pay  a  certain  dividend.  Robertson  v.  Parks,  76  Md.  118,  24  Atl. 
411. 

110  Old  Colony  Trust  Co.  v.  Traction  Co.  (C.  C.)  89  Fed.  794;  Russ  Lumber 
&  Mill  Co.  V.  Water  Co.,  120  Cal.  521,  52  Pac.  995,  65  Am.  St  Rep.  186. 

Claek  Cont.  (2d  Ed.) — 15 


226  REALITY  OF  CONSENT.  (Cll  1 

goods,  not  intending  at  the  time  to  pay  for  them,  he  makes  a  fraudulent 
representation.^*^ 

Same — Misrepresentation  of  Law. 

As  a  rule,  misrepresentation  of  law  does  not  amount  to  a  fraudulent 
representation  for  which  an  action  of  deceit  will  lie,  nor  make  a  con- 
tract voidable.  A  contract,  therefore,  cannot,  unless  there  are  peculiar 
circumstances  of  fraud,  or  a  relation  of  trust  and  confidence  between 
the  parties,^ ^^  be  rescinded  by  one  party  on  the  ground  that  the  other 
falsely  represented  the  legal  effect  of  the  contract,  or  otherwise  misrep- 
resented the  law.**'  As  already  stated,  private  right  of  ownership, 
although  it  be  the  result  also  of  a  matter  of  law,  is  regarded  as  matter 
of  fact,  and  ignorance  of  foreign  laws,  which  include  the  laws  of  a 
sister  state,  is  regarded  as  ignorance  of  fact,  and  misrepresentation  in 
regard  to  either  is  misrepresentation  of  fact.*** 

Same — Materiality. 

Not  only  must  the  representation  be  of  a  fact,  but  it  must  be  of  a 
material  fact.  A  false  representation  of  an  immaterial  fact,  whatever 
may  have  been  the  intention,  has  no  effect.**"  It  may  often  be  difficult 
to  say  when  a  representation  is  material,  but  it  is  probably  safe  to  say 
that  it  is  always  material  if,  had  it  been  known  to  be  false,  the  contract 
would  not  have  been  entered  into.*** 

Right  to  Rely  on  Statements. 

In  order  that  a  person  may  be  entitled  to  rescind  or  maintain  an  action 
for  deceit,  the  representations  must  have  been  of  such  a  character,  and 


111  Ante,  p.  221. 

112  Berry  v.  Whitney,  40  Mich.  71;  Haviland  v.  Willets,  141  N.  Y,  35,  35  N. 
E.  958;   Motherway  v.  Wall,  1G8  Mass.  333,  47  N.  E.  135. 

lis  Upton  V.  Tribilcock,  91  U.  S.  45,  23  L.  Ed.  203;  FISH  v.  OLELAND,  33 
111.  238;  Wheaton  v.  Wheaton,  9  Conn.  96;  Grant  v.  Grant,  56  Me.  573;  Bank 
of  United  States  v.  Daniel,  12  Pet.  32,  9  L.  Ed.  989 ;  Pinkham  v.  Gear,  3  N.  H. 
163;  Clem  v.  Railroad  Co.,  9  Ind.  488,  68  Am.  Dec.  653;  ^tna  Ins.  Co.  v. 
Reed,  33  Ohio  St.  203;  Townseud  v.  Cowles,  31  Ala.  428;  Sims  v.  Ferrill,  45 
Ga.  585 ;  Starr  v.  Bennett,  5  Hill  (N.  Y.)  303 ;  Moreland  v.  Atchison,  19  Tex. 
303 ;  People  v.  Supervisors,  27  Cal.  655 ;  Dillman  v.  Nadlehoffer,  119  111.  567, 
7  N.  E.  88.  But  see  Underwood  v.  Brockman,  4  Dana  (Ky.)  309,  29  Am.  Dec. 
407 ;  Fitzgerald  v.  Peck,  4  Litt.  (Ky.)  125 ;  Lowndes  v.  Chisolm,  2  McCord,  Eq. 
(S.  C.)  455,  16  Am.  Dec.  667.  False  representation  by  the  lessor  of  property 
that  the  lessee  will  have  the  right  to  sell  intoxicating  liquors  therein.  Gor- 
mely  v.  Association,  55  Wis.  350,  13  N.  W.  242. 

114  Ante,  p.  206. 

115  Young  V.  Young,  113  111.  430;  DAWE  v.  MORRIS,  149  Mass.  188,  21  N. 
E.  313,  4  L.  R.  A.  158,  14  Am.  St.  Rep.  404;  Geddes  v.  Pennington,  5  Dow, 
159;  Davis  v.  Davis,  97  Mich.  419,  50  N.  W.  774;  Nounnan  v.  Land  Co.,  81  Cal. 
1,  22  Pac.  515,  6  L.  R.  A.  219;  Winston  v.  Young,  52  Minn.  1,  53  N.  W.  1015; 
Palmer  v.  Bell,  85  Me.  352,  27  Atl.  250;   Cmiiss  v.  Howoll,  39  N.  Y.  211. 

118  McAlcer  T.  Horsey,  35  Md.  439;   Powers  v.  Fowler,  157  Mass.  318,  32  N. 


§  139)  TRAUD.  227 

must  have  been  made  under  such  circumstances,  that  he  had  a  right  to 
rely  on  them.  Representations,  for  instance,  amounting  merely  to 
commendatory  expreseions,  or  exaggerated  statements  as  to  value,  or 
prospects,  or  the  like,  as  where  a  seller  puffs  up  the  value  and  quality 
of  his  goods,  or  a  man,  to  induce  another  to  contract  with  him,  holds 
out  flattering  prospects  of  gain,  are  not  regarded  as  fraudulent.^^^ 
Simplex  commendatio  non  obligat.  As  we  have  seen,  the  buyer  of 
property  is  not  justified  in  relying  on  the  seller's  representation  as  to 
its  value."*  Some  of  the  courts  hold,  however,  that  a  statement  by 
the  seller  of  property  that  he  gave  so  much  for  it  is  a  representation  of 
fact  upon  which  the  buyer  may  rely,  and  that,  if  it  is  knowingly  false, 
it  amounts  to  fraud.^^*  Other  courts  hold  that  such  a  statement  is 
merely  a  commendatory  expression,  on  which  the  buyer  must  not 
rely.^^°  But,  even  where  the  statement  would  ordinarily  be  regarded 
as  a  mere  commendatory  expression  ^^^  or  expression  of  opinion,^^^  the 
circumstances  may  be  such  as  to  justify  the  other  party  in  relying  on  it, 
as,  for  instance,  where  the  parties  do  not  meet  on  equal  terms  by 
reason  of  the  possession  of  special  knowledge  by  the  party  making  the 
statement,  or  there  is  a  relation  of  confidence  between  them.  In  such 
a  case  the  statement  may  be  fraudulent.  • 

B.  166;  Hoist  v.  Stewart,  161  Mass.  516,  37  N.  E.  755,  42  Am.  St.  Rep.  442. 
Post,  p.  232. 

117  Demlng  v.  Darling,  148  Mass.  504,  20  N.  E.  107,  2  L.  R.  A.  743;  Hughes 
V.  Manufacturing  Co.,  34  Md.  318;  Kimball  v.  Bangs,  144  Mass.  321,  11  N.  E. 
113;  Lockwood  v.  Fitts,  90  Ala.  150,  7  South.  467;  Southern  Development  Co. 
V.  Silva,  125  U.  S.  247,  ^  Sup.  Ct.  881,  31  L.  Ed.  678;  Dillman  v.  Nadlehoffer, 
119  111.  567,  7  N.  E.  88;  Jackson  v.  Collins,  39  Mich.  557;  Burns  v.  Mahannah, 
39  Kan.  87,  17  Pac.  319;  Patten  v.  Glatz  (C.  C.)  87  Fed.  283;  Macklem  v. 
Fales,  130  Mich.  66,  89  N.  Vv'^.  581  (representations  as  to  future  possibilities). 
See  the  cases  cited  in  notes  89,  103,  supra. 

118  Ante,  p.  224. 

119  Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260;  Pendergast  v.  Reed,  29  Md. 
398,  96  Am.  Dec.  539;  Salm  v.  Israel.  74  Iowa,  314,  37  N.  W.  387;  Weidner  v. 
Phillips,  39  Hun  (N.  Y.)  1;  Ives  v.  Carter,  24  Conn.  392;  Strickland  v.  Gray- 
bill,  97  Va.  602,  34  S.  E.  475. 

120  Tuck  V.  Downing,  76  111.  71;  Medbury  v.  Watson,  6  Mete.  (Mass.)  246, 
39  Am.  Dec.  726;  Cooper  v.  Lovering,  106  Mass.  77;  Hemmer  v.  Cooper,  8 
Allen  (Mass.)  334;  Bishop  v.  Small,  63  Me.  12;  Holbrook  v.  Connor,  60  Me. 
578,  11  Am.  Rep.  212;  Sowers  v.  Parker,  59  Kan.  12,  51  Pac.  888.  See,  also. 
Cole  V.  Smith,  26  Colo.  506,  58  Pac.  1086. 

121  Teachout  v.  Van  Hoesen,  76  Iowa,  113,  40  N.  W.  96,  1  L.  R.  A.  664,  14 
Am.  St.  Rep.  206;  Hauk  v.  Brownell,  120  111.  161,  11  N.  E.  416;  .Jackson  v.  Col- 
lins, 39  Mich.  557;  Paetz  v.  Stoppleman,  75  Wis.  510,  44  N.  W.  834;  Chrysler 
V.  Canaday,  90  N.  Y.  272,  43  Am.  Rep.  166;  Stoney  Creek  Woolen  Co.  v. 
Smalley,  111  Mich.  321,  69  N.  W.  722 ;  Horton  v.  Lee,  106  Wis.  439,  82  N.  W.  360. 

122  Hedin  v.  Institute,  62  Minn.  146,  64  N.  W.  158,  35  L.  R.  A.  417,  54  Am. 
St  Rep.  628 ;  Hicks  v.  Stevens,  121  111.  186,  11  N.  E.  241 ;  Robbins  v.  Barton, 
50  Kan.  320,  31  Pac.  C86;   Vilett  v.  Moler,  82  Minn.  12,  84  N.  W.  452. 


228  REALITY   OF   CONSENT.  (Ch.  7 

Same — CreduUiy  and  Negligence.of  Party  Defrauded. 

It  would  seem  upon  principle  that  a  person  cannot  avoid  the  effect 
of  his  fraudulent  misrepresentation  on  the  ground  of  the  credulity  of 
the  injured  party  or  of  his  negligence  in  failing  to  ascertain  the  facts, 
and  many  cases  so  hold.^'^  Thus  it  is  very  generally  held  that  a  man 
may  act  upon  a  representation  of  fact,  although  means  of  obtaining 
knowledge  are  at  hand  and  open  to  him.^"  "Every  contracting  par- 
ty has  an  absolute  right  to  rely  on  the  express  statement  of  an  exist- 
ing fact,  the  truth  of  which  is  known  to  the  opposite  party  and  unknown 
to  him,  as  the  basis  of  a  mutual  engagement,  and  he  is  under  no  obli- 
gation to  investigate  and  verify  statements,  to  the  truth  of  which  the 
other  party  to  the  contract  has  deliberately  pledged  his  faith."  ^-^  On 
the  other  hand,  by  many  courts  it  is  laid  down  in  broad  terms  that  if 
the  means  of  knowledge  are  at  hand  and  equally  available  to  both 
parties,  and  the  subject  of  the  contract  is  open  to  the  inspection  of 
both,  the  party  to  whom  the  representation  is  made  will  not  be  heard 
to  say  that  he  has  been  deceived  thereby,  if  he  has  not  availed  himself 
of  such  means  of  knowledge.^^®     This  conflict  of  authority  is  illus- 

123  Redgrave  v.  Hurd,  20  Ch.  Div.  1;  Jackson  v.  Collins,  39  Mich.  557;  Ken- 
dall V.  Wilson,  41  Vt.  567 ;  Chamberlin  v.  Fuller,  59  Vt.  247,  9  Atl.  832 ;  Lining- 
ton  V.  Sti-ong,  107  111.  295;  Cottrill  v.  Knim,  100  Mo.  397,  13  S.  W.  753,  18  Am. 
St.  Rep.  549 ;  Warder,  Bushnell  &  Glessner  Co.  v.  Whitish,  77  Wis.  430,  46  N. 
W.  540;  Sutton  v.  Morgan,  158  Pa.  204,  27  Atl.  894,  38  Am.  St.  Rep.  841;  Mc- 
Gibbons  v.  Wilder,  78  Iowa,  531,  43  N.  W.  520;  Erickson  v.  Fisher,  51  Minn. 
300,  53  N.  W.  638;  Blacknall  v.  Rowland,  108  N.  C.  554,  13  S.  E.  191;  Fargo 
Gas  &  Coke  Co.  v.  Electi-ic  Co.,  4  N.  D.  219,  59  N.  W.  10G6,  37  L.  R.  A.  593; 
Speed  V.  Hollingsworth,  54  Kan.  436,  38  Pac.  496;  Wilson  v.  Carpenter's 
Adm'r,  91  Va.  183,  21  S.  E.  243,  50  Am.  St.  Rep.  824;  Sti-and  v.  Griffith,  97 
Fed.  854,  38  0.  C.  A.  444. 

124  Gammill  v.  Johnson,  47  Ark.  335,  1  S.  W.  610;  Redding  v.  Wright,  49 
Minn.  322,  51  N.  W.  1056;  Hanscom  v.  Drullard,  79  Cal.  234,  21  Pac.  736; 
Clark  V.  Ralls  (Iowa)  24  N.  W.  567;  Ledbetter  v.  Davis,  121  Ind.  119,  22  N.  E. 
744;  Rohrof  v.  Schulte,  154  Ind.  183,  55  N.  E.  427;  Carpenter  v.  Wright,  52 
Kan.  221,  34  Pac.  798 ;  Wheeler  v.  Baars,  33  Fla.  696,  15  South.  584 ;  Love.ioy 
V.  Isbell,  73  Coim.  368,  47  Atl.  682.  Negligence  is,  of  course,  no  defense,  in  the 
case  of  negotiable  paper,  against  innocent  purchasers.    Ante,  p.  198. 

i2BMead  v.  Bunn,  32  N.  Y.  275.  But  see  Long  v.  Warren,  68  N.  Y.  426; 
Schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  755,  757. 

126  Slaughter's  Adm'r  v.  Gerson,  18  Wall.  379.  20  L.  Ed.  627;  Salem  India- 
Rubber  Co.  v.  Adams,  23  Pick.  (Mass.)  256.  265;  Poland  v.  Brownell.  131 
Mass.  138,  41  Am.  Rep.  215;  Brady  v.  Finn,  162  Mass.  2G0,  38  N.  E.  506; 
Palmer  v.  Bell,  85  Me.  352,  27  Atl.  250,  251;  Schumaker  v.  Mather,  133  N. 
Y.  590,  30  N.  E.  755,  757;  Washington  Cent.  Imp.  Co.  v.  Xewlands,  11  Wash. 
212,  39  Pac.  360;  South  Milwaukee  Boulevard  Heights  Co.  v.  Harte,  95  Wis. 
592,  70  N.  W.  21.  See,  also,  Kingston  v.  L.  P.  &  J.  A.  Smith  Co.,  114  Fed.  294, 
52  C.  C.  A.  206. 

"The  requirement,  as  it  has  been  worked  out,  does  not  call  for  more  tlian 
reasonable  diligence  (Hoist  v.  Stewart,  161  Mass.  516,  522,  37  N.  E.  755,  42 
Am.  St.  Rep.  442;    Brown  v.  Leach,  107  Mass.  364,  368;    Nowlan  v.  Cain,  3 


§  139)  FRAUD.  229 

trated  by  the  opposite  decisions  which  have  been  reached  in  cases 
involving  the  liability  of  a  person  who  has  been  fraudulently  induced  to 
execute  an  instrument  upon  misrepresentation  of  the  other  party  as  to 
its  character  or  terms.  Doubtless  a  person  who  fails  to  read  an  instru- 
ment before  signing  it  is  wanting  in  ordinary  prudence,  but  it  has  been 
held  by  many  courts  that  he  is  not  precluded  thereby  from  asserting 
the  invalidity  of  the  contract  as  against  the  party  who  has  thus  pro- 
cured the  execution  by  fraud.^^^  By  other  courts  it  has  been  held 
that  the  party  so  signing  is  precluded  by  his  negligence  from  asserting 
the  invalidity  of  the  contract^** 

Knowledge  of  Falsity — Recklessness. 

A  representation  is  fraudulent  if  it  is  made  with  knowledge  of  its 
falsity  or  without  belief  in  its  truth.  The  mere  absence  of  belief  is 
enough,  and  hence,  if  a  man  makes  a  misrepresentation  in  reckless  dis- 
regard whether  it  is  true  or  not,  the  representation  is  fraudulent,  for 
he  can  have  no  belief  in  the  truth  of  what  he  asserts.^*'     And  if  a  man 

Allen  [Mass.]  261,  264);  and  distance  or  other  slight  circumstances  have  been 
held  sufficient  to  warrant  leaving  the  question  to  the  jury  (Hoist  v.  Stewart, 
161  Mass.  516,  522,  523,  37  N.  E.  755,  42  Am.  St.  Rep.  442).  See  Burns  v.  Lane, 
138  Mass.  350,  355,  356 ;  Whiteside  v.  Brawley,  152  Mass.  133,  24  N.  E.  1088. 
The  matter  may  have  been  confused  a  little  by  not  distinguishing  between 
sellers'  talk  as  to  the  value  and  the  like,  where  the  rule  is  absolute  in  or- 
dinary cases  that  the  buyer  must  look  out  for  himself,  and  representation  of 
facts  concerning  which  even  sellers  may  be  held  liable  for  fraud,  and  as  to 
which  the  buyers  may  be  warranted  in  relying  wholly  on  the  seller's  word. 
The  notion  that  the  buyer  must  look  out  for  himself  sometimes  has  been 
pressed  a  little  too  strongly  into  the  latter  class  of  cases."  Per  Holmes,  J., 
in  Whiting  v.  Price,  172  Mass.  240,  51  N.  E.  1084,  70  Am.  St.  Rep.  262. 

127  Alfred  Shrimpton  &  Sons  v.  Philbrick,  53  Minn.  366,  55  N.  W.  551; 
McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St.  Rep.  848 ;  Burroughs 
V.  Guano  Co.,  81  Ala.  255,  1  South.  212;  Smith  v.  Smith,  134  N.  Y.  62,  31  N.  E. 
258,  30  Am.  St.  Rep.  617;  Kingman  v.  Reinemer,  166  111.  208,  46  N.  E.  786; 
ALEXANDER  v.  BROGLEY,  63  N.  .T.  Law,  307,  43  Atl.  888;  Woodbridge  v. 
De  Witt,  51  Neb.  98,  70  N.  W.  506;  McBride  v.  Publishing  Co.,  102  Ga.  422,  30 
S.  E.  999.  See,  also,  Louisville  &  N.  R.  Co,  v.  Cooper  (Ky.)  56  S.  W.  144; 
Story  V.  Gammell  (Neb.)  94  N.  W.  982. 

128  Taylor  v.  Fleckenstein  (C.  C.)  30  Fed.  99;  Keller  v.  Orr,  106  Ind.  406, 
7  N.  E.  195;  Wallace  v.  Railway  Co.,  67  Iowa,  547,  25  N.  W.  772;  Dowagiac 
Mfg.  Co.  V.  Schroeder,  108  Wis.  109,  84  N.  W.  14;  Kimmell  v.  Skelly,  130  Cal. 
55,  62  Pac.  1067;    Binford  v.  Bruso,  22  Ind.  App.  512,  54  N.  E.  146. 

129  Per  Lord  Cairns,  in  Reese  River  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  79; 
Fisher  v.  Mellen,  103  Mass.  50.*?;  Cole  v.  Cassidy,  138  Mass.  437,  52  Am. 
Rep.  284 ;  Stone  v.  Denny,  4  Mete.  (Mass.)  151 ;  Humphrey  v.  Merriam,  32 
Minn.  197,  20  N.  W.  138 ;  Bennett  v.  Judson,  21  N.  Y.  238 ;  Marsh  v.  Falker, 
40  N.  Y.  562;  Allen  v.  Hart,  72  111.  104;  Case  v.  Ayers,  05  111.  142;  Stone  v. 
Covell,  29  Mich.  359 ;  Bristol  v,  Braidwood,  28  Mich.  191 ;  Walsh  v.  Morse,  80 
Mo.  568;  Cotzhausen  v.  Simon,  47  Wis.  103,  1  N.  W.  473;  Indianapolis,  P.  & 
C.  R.  Co.  V.  Tyng.  63  N.  Y.  653;  Cabot  v.  Christie,  42  Vt.  121,  1  Am.  Rep.  313; 
Ruff  V.  Jarrett,  94  111.  475;    Cooper  v.  Schlesinger,  111  U.  S.  148,  4  Sup.  Ct. 


230  REALITY  OF  CONSENT.  (Ch.  7 

falsely  asserts  a  fact  as  true  of  his  own  knowledge  when  he  has  no 
knowledge,  it  is  none  the  less  fraudulent  because  he  believes  it  to  be 
true.  Probably  it  is  the  prevailing  rule  in  this  country  that  an  unqual- 
ified statement  of  a  material  fact  susceptible  of  actual  knowledge  is  to 
be  taken  as  a  representation  as  of  one's  own  knowledge,  and  that  such 
a  representation  if  false  is  fraudulent,  notwithstanding  belief  in  its 
truth.^^"  In  England,  on  the  other  hand,  and  in  some  states  it  is  held 
that  a  statement  made  in  the  honest  belief  that  it  is  true  is  not  fraudu- 
lent, notwithstanding  absence  of  reasonable  grounds  for  believing  it 
to  be  true.^^^  The  absence  of  such  grounds  can  only  go  to  show  that 
the  belief  was  not  entertained.^'^ 

The  fact  that  the  party  making  the  representation  professed  to  rely 
on  the  representations  of  others,  and  gave  the  source  of  his  informa- 
tion, is  immaterial,  if  he  knew,  or  had  reason  to  believe,  that  they  were 
untrue.^" 

Intention. 

The  representation  must  have  been  made  with  the  intention  that  it 
should  be  acted  upon  by  the  injured  party.^**     Another  statement  of 


360,  28  L.  Ed.  382;  Bower  r.  Fenn,  90  Pa.  359,  35  Am.  Rep.  662;  Leavitt  v. 
Sizer,  35  Neb.  80,  52  N.  W.  832;  Krause  v.  Busacker,  105  Wis.  350,  81  N.  W. 
406. 

130  Litchfield  v.  Hutchinson,  117  Mass.  197;  CHATHAM  FURNACE  CO. 
V.  MOFFATT,  147  Mass.  403,  18  N.  E.  168,  9  Am.  St.  Rep.  727  (Cf.  Goodwin 
V.  Trust  Co.,  152  Mass.  189,  25  N,  E.  100);  Kirkpati-ick  v.  Reeves,  121  Ind. 
280,  22  N.  E.  139;  Bullitt  v.  Farrar,  42  Minn.  8,  43  N.  W.  566,  6  L.  R.  A.  149, 
18  Am.  St.  Rep.  485;  Montreal  Lumber  Co.  v.  Mihills,  80  Wis. ■'540,  50  N.  W. 
507;  Cabot  v.  Christie,  42  Vt.  121,  1  Am.  Rep.  313;  Knappen  v.  Freeman, 
47  Minn.  491,  50  N.  W.  533;  State  v.  Cass,  52  N.  J.  Law,  77,  18  Atl.  972; 
Hamlin  v.  Abell,  120  Mo.  188,  25  S.  W.  516;  Rothschild  v.  Mack,  115  N.  Y.  1, 
21  N.  E.  726;  Hadcock  v.  Osmer,  153  N.  Y.  604,  47  N.  B.  923;  Braley  v.  Powers, 
92  Me.  203,  42  Atl.  362;  Walters  v.  Eaves,  105  Ga.  584,  32  S.  E.  609;  Simon  v. 
Rubber  Shoe  Co.,  105  Fed.  573,  44  C.  C.  A.  612,  52  L.  R.  A.  745.  The  fraud  in 
such  a  case  "consists  in  stating  that  the  party  knows  the  thing  to  exist  when 
he  does  not  know  it  to  exist;  and,  if  he  does  not  know  it  to  exist,  he  must 
ordinarily  be  deemed  to  know  that  he  does  not.  Forgetfulness  of  its  existence 
after  a  former  knowledge,  or  a  m.ere  belief  of  its  existence,  will  not  warrant 
or  excuse  a  statement  of  actual  knowledge."  CHATHAM  FURNACE  CO.  v. 
MOFFATT,  supra.    And  see  Alvarez  v.  Brannan,  7  Cal.  503,  68  Am.  Dec.  274. 

131  Derry  v.  Peek,  14  App.  Cas.  337;  Merwin  v.  Arbuckle,  81  111.  501;  Cox  v. 
Highley,  100  Pa.  249;  Lamberton  v.  Dunham,  165  Pa.  129,  30  Atl.  716;  WIL- 
COX v.  UNIVERSITY,  32  Iowa,  367;  Lord  v.  Goddard,  13  How.  198,  14  L. 
Ed.  Ill;  Pettigrew  v.  Chellis,  41  N.  H.  95;  Scroggin  v.  Wood,  87  Iowa,  497,  54 
N.  W.  437;  Sylvester  v.  Henrich,  93  Iowa,  489,  61  N.  W.  942;  Morton  v.  Scull, 
23  Ark.  289;  Farmers'  Stock  Breeding  Ass'n  v.  Scott,  53  Kan.  534,  36  Pac. 
978. 

132  Anson,  Cont.  (8th  Ed.)  172. 

18  8  Hanscom  v.  DruUard,  79  Cal.  234,  21  Pac.  736, 

18*  Buschman  v.  Codd,  52  Md.  202;    Humphrey  v.  Merriam,  32  Minn.  197, 


§  139)  FRAUD.  231 

this  rule  is  that  the  representation  must  be  made  as  part  of  the  same 
transaction.^^'* 

The  representation  need  not,  indeed,  have  been  made  to  the  injured 
party  himself.  If  a  person,  desiring  to  enter  into  a  contract  with  an- 
other, should  make  a  representation  to  a  third  person  with  the  inten- 
tion that  it  should  reach  the  ears  of  such  other  person,  and  be  acted 
upon  by  him,  in  entering  into  the  contract,  this  would  constitute  a 
fraudulent  misrepresentation  equally  as  if  it  had  been  made  to  the 
other  party.^^°  Where  a  gun  was  sold  to  a  man  for  the  use  of  himself 
and  sons,  the  seller  falsely  representing  that  it  had  been  made  by  a 
certain  maker,  and  was  a  good,  safe,  and  secure  gun,  it  was  held  that 
a  son  of  the  buyer  who  was  injured  by  the  gun's  exploding  could  sue 
the  seller  for  deceit.  In  that  case  it  was  argued  that  the  defendant 
could  not  be  held  liable  to  the  plaintiff  for  a  representation  not  made 
to  him ;  but  the  court  held  that  inasmuch  as  the  gun  was  sold  to  the 
father  to  be  used  by  the  plaintiff,  and  there  was  a  false  representation 
to  effect  the  sale,  and  "as  there  was  fraud,  and  damage  the  result  of 
that  fraud,  not  from  an  act  remote  and  consequential,  but  one  con- 
templated by  the  defendant  at  the  time  as  one  of  its  results,"  the  de- 
fendant was  liable.^^^  So,  also,  where  a  merchant  makes  a  false  state- 
ment as  to  his  financial  responsibility  to  a  mercantile  agency  for  the 
purpose  of  procuring  credit,  and  customers  of  the  agency,  in  reliance 
thereon,  give  him- credit,  and  are  defrauded,  they  may  maintain  an  ac- 
tion of  deceit  against  him,  or  avoid  their  contract  with  him  on  the 
ground  of  fraud. ^^^ 

The  representation,  however,  must  have  been  made  with  the  inten- 
tion that  it  slipuld  be  acted  upon  by  the  injured  party  in  the  manner 
that  occasions  the  injury. ^^®  Thus,  where  the  directors  of  a  company 
made  false  statements  in  the  prospectus  of  the  company,  which  would 
have  made  them  liable  to  the  original  allotters  of  shares,  they  were 

20  N.  W.  138;  Bach  v.  Tuck,  57  Hun.  588,  10  N.  Y.  Supp.  884;  Carter  v.  Har- 
den, 78  Me.  528,  7  Atl.  392 ;   Thorp  v.  Smith,  18  Wash.  277,  51  Pac.  381. 

135  Pollock,  Cont.  (3d  Ed.)  545 ;   Barnett  v.  Baruett,  83  Va.  504,  2  S.  E.  733. 

138  Langridge  v.  I^vy,  2  Mees.  &  W.  519;  Snow  v.  Judson,  38  Barb.  (N.  Y.) 
210;  Benton  v.  Pratt,  2  Wend.  (N.  Y.)  385,  20  Am.  Dec.  623;  Chubbuck  v. 
Cleveland,  37  Minn.  4G6,  35  N.  W.  3G2,  5  Am.  St  Rep.  864 ;  Waterbury  v.  An- 
drews, 67  Mich.  281,  34  N.  W.  575 ;  Hubbard  v.  Weare,  79  Iowa,  678,  44  N. 
W.  915. 

18T  Langridge  t.  Levy,  2  Mees.  &  W.  519. 

13  8  Eaton,  Cole  &  Burnham  Co.  v.  Avery,  83  N.  Y.  31,  38  Am.  Rep.  389; 
Moouey  v.  Davis,  75  Mich.  188,  42  N,  W.  802,  13  Am.  St.  Rep.  425;  Furry  v. 
O'Connor,  1  Ind.  App.  573,  28  N.  E.  103;  Hinchman  v.  Weeks,  85  Mich.  535, 
48  N.  W.  790;  Gainesville  Nat.  Bank  v.  Bramberger,  77  Tex.  48,  13  S.  W.  959, 
19  Am.  St.  Rep.  738;  P.  Cox  Shoe  Co.  v.  Adams,  105  Iowa,  402,  75  N.  W. 
316.  See,  also,  STEVENS  v.  LUDLUM,  46  Minn.  160,  48  N.  W.  771,  13  L.  R. 
A.  270,  24  Am.  St  Rep.  210. 

139  Barry  v.  Crosky,  2  Johns.  &  H.  1. 


232  REALITY   OF  CONSENT.  (Ch.  7 

held  not  to  be  liable  to  persons  who  subsequently  purchased  shares 
which  came  into  the  market,  on  the  ground  that  their  intention  to  de- 
ceive could  not  be  supposed  to  extend  beyond  the  original  applicants 
for  shares.^***  The  directors  in  such  a  case  would  be  Uable  to  the  orig- 
inal applicants  for  shares,  relying  on  the  prospectus/*^ 

Same — Dishonesty  of  Motive. 

If  a  person  makes  a  representation  which  was  fraudulent  as  has  been 
above  explained,  it  is  immaterial  that  he  may  not  have  been  actuated 
by  any  dishonest  motive.  If  a  man  chooses  to  make  such  assertions, 
hoping  or  even  believing  that  all  will  turn  out  well,  he  cannot  escape 
the  results  of  his  fraud  by  showing  the  excellence  of  his  motives.^*^ 
Thus,  where  a  person  accepted  a  bill  of  exchange  drawn  on  another 
person,  and  falsely  represented  that  he  had  authority  from  that  other 
to  do  so,  he  was  held  liable  in  an  action  of  deceit  brought  against  him 
by  an  indorsee,  the  acceptance  having  been  repudiated  by  the  drawee 
and  the  bill  dishonored;  and  the  fact  that  the  defendant  honestly  be- 
lieved that  the  acceptance  would  be  sanctioned  by  the  drawee,  and 
the  bill  paid,  was  held  immaterial.^*' 

Representation  must  Deceive. 

A  false  representation,  to  constitute  fraud,  must  actually  deceive; 
that  is,  it  must  be  reUed  on  by  the  other  party,  and  must  induce  him  to 
act  to  his  prejudice.  If  it  is  not  believed,  or  the  party  disregards  it, 
and  makes  inquiries  for  himself,  there  is  no  fraud.^**     In  a  leading 

140  Peek  V.  Gurney,  L.  R.  6  H.  L.  377,  410.  And  see  Nash  v.  Trust  Co.,  159 
Mass.  437,  34  N.  E.  625;  Davidson  v.  Nichols,  11  Allen  (Mass.)  514.  It  has 
been  held  that  it  could  not  be  said,  as  a  matter  of  law,  that  false  representa- 
tions concerning  the  value  of  certain  stock,  by  which  a  person  was  induced  to 
buy,  may  not  have  continued  in  his  mind,  and  induced  him  to  buy  more 
of  the  stock  a  year  later.    Reeve  v.  Dennett,  145  Mass.  23,  11  N.  E.  938. 

141  Reese  River  Min.  Co.  v.  Smith,  4  H.  L.  Cas.  64;  Vreeland  v.  Stone  Co., 
29  N.  J.  Eq.  188. 

142  Polhill  V.  Walter,  3  Barn.  &  Adol.  114.  A  buyer  of  goods  cannot  avoid 
the  effect  of  knowingly  false  statements  as  to  his  financial  condition  by  show- 
ing that  he  intended  and  expected  to  pay  for  them.  Judd  v.  Weber,  55  Conn. 
267, 11  Atl.  40.  See,  also,  ante,  p.  221.  Although  the  maker  of  the  representa- 
tion believes  it  to  be  true,  if  he  discovers  that  it  is  false  before  it  is  acted 
on,  and  does  not  disclose  the  fact,  he  is  guilty  of  fraud.  Loewer  v.  Harris,  57 
Fed.  368,  6  C.  C.  A.  394;  Guilfcri-d  School  Tp.  v.  Roberts,  28  Ind.  App.  355,  62 
N.  E.  711. 

143  Polhill  V.  Walter,  3  Barn.  &  Adol.  114. 

i44Arkwright  v.  Newbold,  17  Ch.  Div.  324;  Ming  v.  Woolfolk,  116  U.  S.  599, 
6  Sup.  Ct.  489,  29  L.  Ed.  740;  Humphrey  v.  Merriam,  32  Minn.  197,  20  N.  W. 
138 ;  Crehore  v.  Crehore,  97  Mass.  330,  93  Am.  Dec.  98 ;  Runge  v.  Brown,  23 
Neb.  817,  37  N.  W^  660;  Brackett  v.  Griswold,  112  N.  Y.  454,  20  N.  E.  376; 
Craig  V.  Hamilton,  118  Ind.  505,  21  N.  E.  315 ;  Priest  v.  White,  89  Mo.  609,  1 
S.  W.  361;  Buscliman  v.  Codd,  52  Md.  202;  Farrar  v.  Churchill,  135  U.  S.  616, 
10  Sup.  Ct.  771,  34  L.  Ed.  246;    Hubbard  v.  Weare,  79  Iowa,  678,  44  N.  W. 


§  139)  FRAUD.  233 

case  on  this  subject  it  appeared  that  the  defendant  had  bought  a  cannon 
from  the  plaintiff,  having  a  defect  in  it  which  rendered  it  worthless, 
and  the  plaintiff  had  endeavored  to  conceal  the  defect  by  inserting  a 
metal  plug  in  the  weak  spot.  The  defendant  never  inspected  the 
cannon.  He  accepted  it,  and,  in  using  it,  it  burst.  It  was  held  that 
the  attempted  fraud,  having  had  no  operation  upon  the  mind  of  the 
defendant,  did  not  exonerate  him  from  paying  for  the  gun.  "If,"  said 
the  court,  "the  plug  which  it  was  said  was  put  in  to  conceal  the  defect 
had  never  been  there,  his  position  would  have  been  the  same ;  for,  as 
he  did  not  examine  the  gun,  or  form  any  opinion  as  to  whether  it  was 
sound,  its  condition  did  not  affect  him."  ^*'^  If  the  representation  was 
one  calculated  to  induce  the  other  party  to  make  the  contract,  the  pre- 
sumption is  that  he  was  influenced  by  it ;  and,  in  order  to  take  away  his 
right  to  relief  on  the  ground  of  fraud,  it  must  be  shown  that  he  did 
not  rely  on  it.^** 

The  representation  need  not  have  been  the  sole  inducement  to  enter 
into  the  contract.  If  it  was  a  material' inducement, — that  is,  if  it  so 
contributed  as  an  inducement  that  without  it  the  contract  would  not 
have  been  made, — it  is  sufficient.^*'' 

Injury  must  Result. 

It  is  essential,  in  order  to  sustain  an  action  of  deceit,  or  to  give  a 
party  the  right  to  avoid  a  contract  on  the  ground  of  fraud,  that  he 
shall  have  been  prejudiced  or  injured  by  the  fraud. ^*®  Where,  for 
instance,  a  person  was  induced  to  exchange  his  property  for  shares  of 
stock  by  false  representations  of  the  other  party,  but  the  stock  was 
worth  what  he  gave  for  it,  so  that  he  suffered  no  injury,  it  was  held 
that  he  could  not  maintain  an  action  for  deceit.^*®     And,  in  a  case  in 

915;  Cobb  v.  Wright,  43  Minn.  83,  44  N.  W.  6G2;  Wimer  v.  Smith,  22  Or.  469, 
30  Pac.  416;  Pennybacker  v.  Laidley,  33  W.  Va.  624.  11  S.  E.  39;  Darby  v. 
Kroell,  92  Ala.  607,  8  South.  384 ;  Pratt  v.  Burhans,  84  Mich.  487,  47  N.  W. 
1064,  22  Am.  St.  Rep.  703;  Fowler  v.  McCann,  86  Wis.  427,  56  N.  W.  1085; 
Black  V.  Black,  110  N.  C.  398,  14  S.  E.  971;  Dady  v.  Condit,  163  111.  511,  45  N. 
E.  224;  Brady  v.  Evans,  78  Fed.  558,  24  C.  C.  A.  236;  Wagner  v.  Insurance 
Co.,  90  Fed.  395,  33  C.  C.  A.  121. 

i4BHorsfall  v.  Thomas,  1  Hurl.  &  C.  90,  99. 

1*8  Redgrave  v.  Hurd,  20  Ch.  Div.  App.  21 ;  Hicks  v.  Stevens.  121  111.  186, 
11  N.  E.  241;  Gan-ison  v.  Electrical  Works,  59  N.  J.  Eq.  440,  45  Atl.  612; 
Dashiel  v.  Harshman,  113  Iowa,  283,  85  N.  W.  88. 

14T  Peek  V.  Derry,  37  Ch.  Dlv.  541,  L.  R.  14  App.  Cas.  337;  SaCford  v.  Grout, 
120  Mass.  20;  Burr  v.  Willson,  22  Minn.  206;  Lebby  v.  Ahrens.  26  S.  C.  275, 
2  S.  E.  387;  Saunders  v.  McClintock,  46  Mo.  App.  216;  Strong  v.  Strong.  102 
N.  Y.  69,  5  N.  E.  799;  Ruff  v.  Jarrett,  94  111.  475;  Moline-Milburn  Co.  v.  Frank- 
lin, 37  Minn.  137,  33  N.  W.  323. 

148  Schubart  v.  Coke  Co.,  41  111.  App.  181;  Marriner  v.  Dennison,  78  Cal. 
202,  20  Pac.  386;  Lorenzen  v.  Investment  Co.,  44  Neb.  99.  62  N.  W.  231;  Bomar 
V.  Rosser,  131  Ala.  215,  31  South.  430.  But  see  Northrop  v.  Hill,  57  N.  Y. 
351,  15  Am.  Rep.  501 . 

149  Alden  v.  Wright,  47  Minn.  225,  49  N.  W.  767,  and  cases  there  cited. 


234  REALITY  OP  CONSENT.  (Ch.  7 

which  the  seller  of  property  had  falsely  represented  that  there  was 
no  mortgage  thereon,  it  was  held  that  the  purchaser  could  not  avoid 
the  sale,  where  the  seller  had  the  mortgage  released  as  soon  as  his  at- 
tention was  called  to  it.^'*" 


SAME— EFFECT— REMEDIES. 

140.  Frand  renders  a  contract,  not  void,  but  merely  voidable  at  tbe  op- 

tion of  the  party  injured.      Tberefore, 

(a)  He  may  affirm  the  contract,  and  sue  for  damages  for  the  deceit, 

or,  if  sued  on  the  contract,  set  up  tbe  fraud  in  reduction  of  tlie 
demand. 

(b)  He  may  rescind  tbe  contract,  and 

(1)  Sue  for  damages  for  tbe  deceit; 

(2)  Sue  to  recover  ivbat  be  bas  parted  ivitb; 

(3)  Resist  an  action  at  lavr  on  tbe  contract; 

(4)  Resist  a  suit  in  equity  for  specific  performance,  or 

(5)  Sue  in  equity  to  bave  tbe  contract  avoided  judicially. 

141.  Tbere  are  tbe  following  limitations  to  a  party's  rigbt  to  rescind  a 

contract  for  fraud: 
(a)    He  cannot  rescind  after  affirming  it  by  accepting  its  benefits,  or 
by   suing    or   otber\7ise   acting   upon   it   after    discovery   of   tbe 
fraud. 
Cb)    Delay   in   rescinding    after   discovery    of    tbe    fraud,    or   after   it 
sbould  bave   been  discovered,  may  amount  to  an  affirmance   at 
la\5r,  and  may  bar  relief  in  equity  on  tbe  ground  of  lacbes. 
(o)    Tbe  consideration  must  be  returned  as  a  condition  precedent  to 
tbe  rigbt  to  rescind;   and,  as  a  rule,  tbere  can  be  no  rescission  if 
tbe  subject-matter  of  tbe  contract  bas  been  so  dealt  witb  tbat 
tbe  parties  cannot  be  placed  in  statu  quo. 
EXCEPTIONS— (1)    This  rule  does  not  apply  wbere  tbe  considera- 
tion bas  been  destroyed,  or  taken  from  tbe  injured  party's 
control,  'nritbout  bis  fault. 

(2)  "Wbere  it  is  of  no  value  whatever. 

(3)  Provided  tbe  consideration  is  returned,  tbe  fraudulent  par- 

ty need  not  be  placed  in  as  good  a  position  as  be  before  oc- 
cupied, if,  by  reason  of  bis  own  act,  it  is  impossible  to  do  so. 

(4)  If,  by  natural  causes,  or  reasonable  use,  tbe  value  of  tbe  con- 

sideration bas  diminisbed,  it  may  be  returned  in  its  depre- 
ciated condition, 
(d)    Tbe  rigbt  to  rescind  may  be  defeated  by  a  tbird  person's  having 

acquired  an  interest  under  the  contract  for  value,  and  without 

notice  of  the  fraud. 

Fraud  does  not  render  the  contract  void,  but  renders  it  only  void- 
able at  the  option  of  the  party  defrauded. ^''^  In  other  words,  it  is  valid 
until  rescinded.     It  is  for  the  party  defrauded  to  elect  whether  he  will 

1  BO  Johnson  v.  Seymour,  79  Mich.  156,  44  N.  W.  344.  And  see  Beard  v. 
Bliley,  3  Colo.  App.  479,  34  Pac.  271.  Cf.  Stevenson  v.  Marble  (C.  C.)  84  Fed. 
23. 

181  Baird  v.  Mayor,  96  N.  Y.  567;    Rowley  v,  Bigelow,  12  Pick.  (Mass.)  307, 


■J^ 


§§  140-141)  FRAUD.  235 

be  bound.^°'  He  therefore  has  several  remedies  on  discovering  the 
fraud : 

First.  He  may  affirm  the  contract,  and  bring-  an  action  for  deceit  to 
recover  such  damages  as  the  fraud  has  occasioned  him,  or  set  up  such 
damages  by  way  of  recoupment  or  counterclaim,  if  sued  upon  the  con- 
tract by  the  other  party. ^"^^  For  instance,  the  defrauded  buyer,  on  dis- 
covering the  fraud,  may  keep  the  goods,  and  bring  an  action  for  dam- 
ages; ^^*  or,  if  he  has  not  paid  for  them,  he  may  set  up  the  fraud 
when  sued  by  the  seller  for  the  price.^'"' 

Second.  He  may  rescind  the  contract,  and  (i)  sue,  in  an  action  of 
deceit,  for  any  damages  he  may  have  sustained  by  reason  of  the 
fraud  ;^°®  or  (2)  if  he  has  paid  money  under  the  contract,  he  may 
recover  it  back,^^^  and  if  he  has  delivered  goods  or  property  he  may 
maintain  an  action  of  replevin  or  trover ;^°^  or  (3)  he  may  resist  an  ac- 
tion at  law  brought  against  him  on  the  contract ;  ^"^^  or  (4)  he  may  resist 
a  suit  in  equity  by  the  other  party  for  specific  performance;  ^®°  or  (5) 
he  may  himself  sue  in  equity  to  have  the  contract  judicially  canceled 
and  set  aside.^®^ 


23  Am.  Dec.  607 ;  Smith  v.  Hornback,  4  Lltt.  (Ky.)  232,  14  Am.  Dec.  122 ;  Fore- 
man V.  Bigelow,  4  Cliff.  541,  Fed.  Cas.  No.  4,934 ;  Cobb  v.  Hatfield,  46  N.  Y.  533 : 
Wilson  T.  Hundley,  96  Va.  96,  30  S.  E.  492,  70  Am.  St.  Rep.  837. 

152  Kawlins  v.  Wickham,  3  De  Gex  &  J.  322;  Clough  v.  Railway  Co.,  L.  R. 
7  Exch.  26;  Tiffany,  Sales,  119. 

IBS  Union  Cent.  Life  Ins.  Co.  v.  Schidler,  130  Ind.  214,  29  N.  E.  1071, 
15  L.  R.  A.  89;  Peck  v.  Brewer,  48  111.  54;  Haven  v.  Neal,  43  Minn.  315, 
45  N.  W.  612;  Pryor  v.  Foster,  130  N.  Y.  371,  29  N.  E.  123;  Nauman  v.  Oberle, 
90  Mo.  666,  3  S.  W.  380;  Barr  v.  Kimball,  43  Neb.  766,  62  N.  W.  196.  But  some 
cases  hold  that  if,  while  the  contract  is  still  wholly  or  largely  executory,  the 
defrauded  party  learns  of  the  fraud,  and  nevertheless  continues  to  carry  out 
the  contract,  exacting  performance,  and  receiving  benefits,  he  cannot  maintain 
an  action  for  the  deceit.  Kingman  &  Co.  v.  Stoddard,  85  Fed.  740,  29  C.  C. 
A.  413;  Simon  v.  Rubber  Shoe  Co.,  105  Fed.  573,  44  C.  C.  A.  612,  52  L.  R.  A. 
745. 

iB4Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Cas.  323. 

iBOApplegarth  v.  Robertson,  ,i5  Md.  493,  4  Atl.  896. 

156  Warden  v.  Fosdick,  i3  Johns.  (N.  Y.)  325,  7  Am.  Dec.  3S3;  Burns  v. 
Dockray,  156  Mass.  135,  30  N.  E.  551;   Peck  v.  Brewer,  48  111.  54. 

157  Clarke  v.  Dickson,  El.  Bl.  &  El.  148;  CooMdge  v.  Brigham,  1  Mete. 
(Mass.)  547. 

158  Thurston  v.  Blanchard,  22  Pick.  (Mass.)  18,  33  Am.  Dec.  700;  FERGU- 
SON V.  CARRINGTON,  9  Barn.  &  C.  59 ;  Lee  v.  Burnham,  82  Wis.  209,  52 
N.  W.  255;  Moody  v.  Blake,  117  Mass.  23,  19  Am.  Rep.  394;  Cary  v.  Hotailing, 
1  Hill  (N.  Y.)  311,  37  Am.  Dec.  323;  Benesch  v.  Weil,  69  Md.  276,  14  Atl.  666; 
Barker  v.  Dinsmore,  72  Pa.  427,  13  Am.  Rep.  697. 

159  Clough  V.  Railway  Co.,  L.  R.  7  Exch.  26,  36. 

i«oRatliix  V.  Vandikes,  S9  Va.  307,  15  S.  E.  864;  Friend  v.  Lamb,  152  Pa. 
529,  25  Atl.  577,  34  Am.  St.  Rep.  672;    McShane  v.  Hazlehurst,  50  Md.  107; 

181  See  note  161  on  following  page. 


236  REALITY  OF  CONSENT.  (Ch.  7 

Limitations  to  Right  to  Rescind. 

As  a  rule,  the  defrauded  party  must  elect  to  rescind  within  a  rea- 
sonable time  after  discovering  the  fraud,^*^  or,  what  amounts  to  the 
same  thing,  after  he  could  have  discovered  it  by  the  use  of  due  dili- 
gence.^^^  It  has  been  said  that  mere  lapse  of  time,  in  the  absence  of 
statutory  regulation,  will  not  bar  his  right  to  rescind,  though  it  would 
be  evidence  tending  to  show  an  intention  to  affirm.^ ^*  A  delay  in  re- 
scinding which  is  unreasonable  in  view  of  the  particular  circumstances, 
however,  will  generally  be  regarded,  even  at  law,  as  an  election  to  af- 
gj.j^  165  ^j^^j  ^ji}  i^^j.  relief  in  equity  on  the  ground  of  laches.^®' 

Any  acts  which  unequivocally  treat  the  contract  as  subsisting  will 
constitute  an  affirmance.  If,  after  discovering  the  fraud,  the  party  in- 
jured acts  on  the  contract  by  accepting  some  benefit  under  it,  or  other- 
wise, he  affirms  it,  and  cannot  afterwards  rescind,  for  after  an  af- 
firmance the  election  is  determined.^ ®^  Bringing  an  action  on  the  con- 
Chute  V.  Quincy,  156  Mass.  189,  30  N.  E.  550 ;  Brown  v.  Pitcairn,  148  Pa.  387,  24 
Atl.  52,  33  Am.  St.  Rep.  834. 

101  Castle  V.  Kemp,  124  111.  307,  16  N.  E.  255;  Downing  v.  Wherrin,  19  N. 
H.  9,  49  Am.  Dec.  139;  Burrows  v.  Wene  (N.  J.  Ch.)  26  Atl.  890;  Williams  v. 
Kerr,  152  Pa.  560,  25  Atl.  618;  Jackson  v.  Hodges,  24  Md.  468;  Tretheway 
V.  Hulett,  52  Minn.  448,  54  N.  W.  486. 

ica  Johnson  V.  McLane,  7  Blackf.  (Ind.)  501,  43  Am.  Dec.  102;  Schiffer  v. 
Dietz,  83  N.  Y.  300;  Sti'ong  v.  Strong,  102  N.  Y.  69,  5  N.  E.  799;  Bailey  v.  Fox, 
78  Cal.  389,  20  Pac.  868;  Young  v.  Arntze,  86  Ala.  116,  5  South.  253;  Pence 
V.  Langdon,  99  U.  S.  578,  25  L.  Ed.  420 ;  Taylor  v.  Short,  107  Mo.  384,  17  S. 
W.  970 ;  Kugan  v.  Sabin,  10  U.  S.  App.  519,  3  C.  C.  A.  578,  53  Fed.  415 ;  Wil- 
bur V.  Flood,  16  Mich.  40,  93  Am.  Dec.  203;  Conlan  v.  Koemer,  52  N.  J.  Law, 
53,  IS  Atl.  858;  Foley  v.  Crow,  37  Md.  62;  Fleming  v.  Hanley,  21  R.  I.  141,  42 
Atl.  520.  Delay  alone,  without  discovery  of  the  fraud,  will  not  bar  the  right 
to  rescind.  Smith's  Adm'r  v.  Smith,  30  Vt.  139;  Brown  v.  Norman,  65  Miss. 
309,  4  South.  293,  7  Am.  St.  Rep.  663;   Bowman  v.  Patrick  (C.  C.)  36  Fed.  138. 

163  Redgrave  v.  Hurd,  20  Ch.  Div.  1;  Georgia  Pac.  R.  Co.  v.  Brooks,  66 
Miss.  583,  6  South.  467;  Bostwick  v.  Insurance  Co.,  116  Wis.  392,  92  N.  W. 
246. 

164  Anson,  Cont.  (8th  Ed.)  177;  Clough  v.  Railroad  Co.,  L.  R.  7  Exch.  35; 
Wicks  V.  Smith,  21  Kan.  412,  30  Am.  Rep.  433. 

18B  Masson  v.  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec.  6.51;  Perry  v.  Pearson, 
135  111.  218,  25  N.  E.  636;    Carroll  v.  People,  13  111.  App.  200;    note  162,  supra. 

160  Cox  V.  Montgomery,  36  111.  396;  Perry  v.  Pearson,  135  111.  218,  25  N.  E. 
636;  Whittaker  v.  Improvement  Co.,  34  W.  Va.  217,  12  S.  E.  507;  Barnard  v. 
Iron  Co.,  85  Tenn.  139,  2  S.  W.  21;  Burkle  v.  Levy,  70  Cal.  250.  11  Pac.  643; 
Wilkinson  v.  Sherman,  45  N.  J.  Eq.  413,  18  Atl.  228;  Coles  v.  Vanneman,  51 
N.  J.  Eq.  323,  18  Atl.  468. 

167  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798;  Dennis  v.  Jones,  44  N.  J. 
Eq.  513,  14  Atl.  913,  6  Am.  St.  Rep.  899;  Pence  v.  Langdon,  99  U.  S.  578,  25 
L.  Ed.  420 ;  Lockwood  v.  Fitts,  90  Ala.  150,  7  South.  467 ;  Crooks  v.  Nippolt, 
44  Minn.  239,  46  N.  W.  340;  Eberstein  v.  Willets,  134  111.  101,  24  N.  B.  967: 
Troup  v.  Appleman,  52  Md.  456;  Wyeth  v.  Walzl,  43  Md.  426;  Cobb  v.  Hat- 
field, 46  N.  Y.  5.33;  Bell  v.  Keepers,  39  Kan.  105,  17  Pac.  785;  Bach  v.  Tuch, 
12G  N.  Y.  53,  26  N.  E.  1019. 


§§  140-141)  FRAUD.  237 

tract,  or  otherwise  seeking  to  enforce  it,  after  knowledge  of  the  fraud, 
is  an  affirmance/"*  It  is  otherwise  if  an  action  is  brought,  or  the 
contract  otherwise  acted  upon,  in  ignorance  of  the  fraud.^^^  As  al- 
ready stated,  an  affirmance  of  the  contract  is  no  bar  to  an  action  to  re- 
cover damages  for  the  deceit.^''" 

Return  of  Consideration — Placing  in  Statu  Quo. 

The  contract  must  be  rescinded  in  toto;  it  cannot  be  rescinded  in 
part  and  affirmed  in  part.^^^  As  a  rule,  therefore,  it  is  a  condition 
precedent  to  the  right  to  rescind  a  contract  on  the  ground  of  fraud 
that  the  party  seeking  to  rescind  shall  return,  or  offer  to  return,  what 
he  has  received  under  the  contract ;  ^^^  and  generally,  if  the  subject- 
matter  has  been  so  dealt  with,  even  before  discovery  of  the  fraud,  that 
the  parties  cannot  be  reinstated  in  their  former  position,  the  court  will 
not  allow  a  rescission,  but  will  leave  the  matter  to  be  adjusted  by  an 
action  for  damages  by  the  party  injured,  or  defense  or  counterclaim 
in  an  action  by  the  other  party/^^ 

The  defrauded  party  need  not  return  what  he  has  received,  however, 
if  it  has  been  destroyed,  or  taken  from  his  control,  without  fault  on  his 

i«8  Bach  V.  Tuch,  supra ;  Conrow  v.  Little,  115  N.  Y.  387,  22  N.  E.  346,  5 
L.  R.  A.  693;  Goodall  v.  Stewart,  65  Miss.  157,  3  Soutli.  257;  Mansfield  v. 
Wilson  (Ark.)  13  S.  W.  598;  Bedier  v.  Keaume,  95  Mich.  518,  55  N.  W.  366; 
Wheeler  v.  Dunn,  13  Colo.  428,  22  Pac.  827;  Stevens  v.  Pierce,  151  Mass. 
207,  23  N.  E.  lOOG. 

169  Lee  V.  Buruham,  82  Wis.  209,  52  N.  W.  255;  Equitable  Co-op.  Foundry 
Co.  V.  Hersee,  103  N.  Y.  25,  9  N.  E.  487;  Hoyt  Mfg.  Co.  v.  Turner,  84  Ala.  523, 
4  South.  658 ;   Baker  v.  Maxwell,  99  Ala.  558,  14  South.  468. 

170  Ante,  p.  235;  Gilchrist  v.  Manning,  54  Mich.  210,  19  N.  W.  959;  Mattock 
V.  Repi^y,  47  Ark.  148,  14  S.  W.  546;  Hinchman  v.  Weeks,  85  Mich.  535,  48 
N.  W.  790;  Childs  v.  Merrill,  63  Vt  463,  22  Atl.  626,  14  L.  R.  A.  264;  Union 
Cent.  Life  Ins.  Co.  v.  Schidler,  130  Ind.  214,  29  N.  E.  1071,  15  L.  R.  A.  89 ;  Wa- 
bash Valley  Protective  Union  v.  James,  8  Ind.  App.  449,  35  N.  E.  919 ;  Teachout 
V.  Van  Hoesen,  76  Iowa,  113,  40  N.  W.  96,  1  L.  R.  A.  664,  14  Am.  St.  Rep.  206. 

171  Brill  V.  Rack  (Ky.)  23  S.  W.  511;  Merrill  v.  Wilson,  66  Mich.  232,  33  N. 
W.  716;  Barrie  v.  Earle,  143  Mass.  1,  8  N.  E.  639,  58  Am.  Rep.  126;  Bell  v. 
Keepers,  39  Kan.  105,  17  Pac.  785;  ante,  p.  171.  And  see  the  cases  cited  in  the 
following  notes. 

172  Brown  v.  Norman,  65  Miss.  369,  4  South.  293,  7  Am.  St.  Rep.  663 ;  Esta- 
brook  V.  Swett,  116  Mass.  303;  Cobb  v.  Hatfield,  46  N.  Y.  533;  Thompson  v. 
Peck,  115  Ind.  512,  18  N.  E.  16,  1  L.  R.  A.  201;  Babcock  v.  Case,  61  Pa.  427; 
Young  v.  Arntze,  86  Ala.  110,  5  South.  253 ;  Doughten  v.  Association,  41  N.  J. 
Eq.  556,  7  Atl.  479;  Cookingham  v.  Dusa,  41  Kan.  229,  21  Pac.  95;  Carlton 
V.  Hulett,  49  Minn.  308,  51  N.  W.  1053;  Balue  v.  Taylor,  136  Ind.  368,  36  N. 
E.  269;  Freeman  v.  Kieffer,  101  Cal.  254,  35  Pac.  767;  Moore  v.  Association, 
165  Mass.  517,  43  N.  E.  298;  Friend  Bros.  Clothing  Co.  v.  Hulbert,  98  Wis.  183, 
73  N.  W.  784;  Breyfogle  v.  Walsh,  SO  Fed.  172,  25  C.  C.  A.  357. 

i73CurtIss  V.  Howell,  .39  N.  Y.  211:  Neal  v.  Reynolds,  38  Kan.  432,  16 
Pac.  785 ;  Rigdon  v.  Walcott,  141  111.  649,  31  N.  E.  158 ;  Stanton  v.  Hughes, 
97  N.  C.  318,  1  S.  E.  852;   Handforth  v.  Jackson,  150  Mass.  149,  22  N.  E.  634. 


238  REALITY   OF   CONSENT.  (Ch.  7 

part,^^*  or  if  it  is  absolutely  worthless.^'"  Nor  need  he  place  the  other 
party  in  the  position  which  he  before  occupied,  if,  by  reason  of  the 
latter's  act,  it  is  impossible  to  do  so.  All  that  can  be  required  is  that 
he  return  what  he  has  himself  received.^ ^'  Mere  depreciation  in  value 
of  the  thing  received  before  discovery  of  the  fraud  will  not  defeat 
rescission;  ^^^  and  if  in  the  meantime  he  has  incurred  expenses  for  re- 
pairs, he  may,  on  rescission  and  return,  recover  the  cost.^"^®   . 

Same — As  against  Third  Persons. 

It  follows  from  the  principle  that  the  contract  is  voidable,  and  not 
void,  that,  when  innocent  third  persons  have  for  value  acquired  rights 
under  the  contract,  their  rights  are  indefeasible.  The  rule  is  also  said 
to  be  an  application  of  the  principle  of  convenience,  that,  when  one  of 
two  innocent  persons  must  suffer  from  the  fraud  of  a  third,  the  loss 
should  fall  on  the  one  who  enabled  the  third  party  to  commit  the 
fraud. ^^^  Hence,  a  sale  of  land  or  goods  cannot  be  rescinded  so  as 
to  revest  the  property  in  the  vendor  if  the  vendee  has  in  the  meantime 
sold  them  to  a  bona  fide  purchaser.  The  seller's  remedy  is  by  an  ac- 
tion for  damages.^*"     The  purchase  must  be  for  value,  and  hence  the 

i74Neblett  v.  Macfarland,  92  U,  S.  101,  23  L.  Ed.  471;  Flynn  v.  Allen,  57 
Pa.  482 ;  Hammond  v.  Pennock,  61  N.  Y.  145 ;  Henninger  v.  Heald,  51  N.  J. 
Eq.  74,  26  Atl.  449;   Groff  v.  Hansel,  33  Md.  161. 

17  5  Fitz  V.  Bynum,  55  Cal.  459;  Wicks  v.  Smith,  21  Kan.  412,  30  Am.  Rep. 
433;  Babcock  v.  Case,  61  Pa.  427,  100  Am.  Dec.  654.  If  the  things  received 
are  capable  of  serving  any  purpose  of  advantage  by  their  possession  or  con- 
trol, or  if  their  loss  would  be  a  disadvantage  in  any  way,  they  must  be  return- 
ed. "This  rule  is  held  with  great  strictness  in  actions  at  law,  as  in  the  case  of 
the  casks  that  contained  worthless  lime  (Conner  v.  Henderson,  15  Mass.  319, 
S  Am.  Dec.  103),  and  the  sack  that  covered  the  rejected  bale  of  cotton  (Morse 
v.  Brackett,  98  Mass.  205;  Id.,  104  Mass.  494)."  Bassett  v.  Brown,  105  Mass. 
558.    And  see  Evans  v.  Gale.  17  N.  H.  573,  43  Am.  Dec.  614. 

176  Masson  v.  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec.  651;  Hammond  v. 
Pennock,  61  N.  Y.  145;  Guckenheimer  v.  Angevine,  81  N.  Y.  394;  Gates  v. 
Raymond,  106  Wis.  657,  82  N.  W.  530.  And  see  John  V.  Farwell  Go.  v.  Hilton 
(C.  C.)  84  Fed.  293. 

177  Veazie  v.  Williams,  8  How.  134,  158,  12  L.  Ed.  1018;  Neblett  v.  Mc- 
Farland,  92  U.  S.  101,  104,  23  L.  Ed.  471 ;  Baker  v.  Lever,  67  N.  Y.  304,  23  Am. 
Rep.  117;  Catling  v.  Newell,  9  Ind.  574;  Goodrich  v.  Lathrop,  94  Cal.  56,  29 
Pac.  329,  38  Am.  St.  Rep.  91. 

178  Farris  v.  Ware,  60  Me.  482. 

170  Pollock,  Cont.  (3d  Ed.)  556;    Tiffany,  Sales,  122. 

180  Babcock  v.  Lawson,  4  Q.  B.  Div.  394;  Rowley  v.  Bigelow,  12  Pick. 
(Mass.)  307,  23  Am.  Dec.  607;  Hoffman  v.  Noble,  6  Mete.  (Mass.)  68,  39  Am. 
Dec.  711;  Neff  v.  Landis,  110  Pa.  204,  1  Atl.  177;  Le  Grand  v.  Bank,  81  Ala. 
123,  1  South.  460,  60  Am.  Rep.  140 ;  Moore  v.  Moore,  112  Ind.  149,  13  N.  E.  673, 
2  Am.  St.  Rep.  170 ;  Jones  v.  Christian,  86  Va.  1017,  11  S.  E.  984 ;  Armstrong 
V.  Lewis,  38  111.  App.  104;  First  Nat.  Bank  v.  Carriage  Co.,  70  Miss.  550,  12 
South.  598 ;  Scheuer  v.  Goetter,  102  Ala.  313,  14  South.  774 ;  Hall  v.  Hinks,  21 
Md.  400;  Singer  Mfg.  Co.  v.  Sammons,  49  Wis.  316,  5  N.  W.  788;  Cochran 
V.  Stewart,  21  Minn.  435. 


§§  Ub-Ul)  FRAUD.  239 

protection  does  not  extend  to  attaching  creditors,^**  to  an  assignee  in 
bankruptcy/^-  or  to  a  person  taking  the  property  in  payment  of  an  ex- 
isting indebtedness. ^^^ 

A  sale,  however,  is  to  be  distinguished  from  mere  delivery  of  pos- 
session induced  by  fraud ;  for  in  the  latter  case  the  person  obtaining 
possession  acquires  no  property  in  the  goods,  and  can  pass  none  to  a 
third  person,  hov\^ever  innocent.  Thus,  where  a  person  obtains  goods 
by  fraudulently  impersonating  a  third  person,^^*  or  by  pretending  to  be 
the  agent  of  a  third  person,^ ^^  to  whom  the  owner  supposes  he  is  sell- 
ing, the  person  thus  obtaining  the  goods  acquires  no  title,  and  a  bona 
fide  purchaser  from  him  stands  in  no  better  position.  In  such  case 
there  is  no  contract  at  all,  as  the  seller  never  consented  to  sell  to  the 
person  to  whom  he  delivered  the  goods. 

As  a  rule,  if  a  negotiable  instrument  is  procured  by  fraud,  the  party 
intending  to  sign  it  as  such,  so  that  there  is  no  mistake  as  to  the  char- 
acter of  the  instrument,  it  cannot  be  avoided  on  the  ground  of  the 
fraud  after  it  has  passed  into  the  hands  of  a  bona  fide  purchaser  for 
value;  ^^®  but,  as  we  have  seen,  it  is  otherwise  where,  by  fraud  or  cir- 
cumvention, a  person  is  induced  to  sign  a  negotiable  instrument,  when 
he  does  not  intend  to  sign  it,  but  thinks  he  is  signing  something  else, 
provided,  of  course,  he  is  not  guilty  of  such  negligence  as  will  estop 
him  from  setting  up  his  mistake.^*' 

'  181  Buffington  v.  Gerrish,  15  Mass.  158,  8  Am.  Dec.  97;  Thompson  v.  Rose, 
16  Conn.  71,  41  Am.  Dec.  121;  .Jordan  v.  Parker,  56  Me.  557;  Oswego  Starch 
Factory  v.  Lendrum,  57  Iowa,  573,  10  N.  W.  900,  42  Am.  Rep.  53 ;  Henderson 
V.  Gibbs,  39  Kan.  679,  684,  18  Pac.  926. 

182  Donaldson  v.  Farwell,  93  U.  S.  631,  23  L.  Ed.  993;  Bussing  v.  Rice,  2 
Gush.  (Mass.)  48;  Singer  v.  Schilling,  74  Wis.  369,  43  N.  W.  101;  Benesch  v. 
Weil,  69  Md.  274,  14  Atl.  666. 

183  Barnard  v.  Campbell,  58  N.  Y.  73,  17  Am.  Rep.  208;  Stevens  v.  Brennan, 
79  N.  Y.  258;  Sleeper  v.  Davis,  64  N.  H.  59,  6  Atl.  201,  10  Am.  St.  Rep.  377; 
Poor  V.  Woodburn,  25  Vt  235;  McGraw  v.  Solomon,  83  Mich.  442,  47  N.  W. 
345.  Contra,  Shufeldt  v.  Pease,  16  Wis.  659;  Butters  v.  Haughwout,  42  111. 
18,  89  Am.  Dec.  401. 

184  GUNDY  V.  LINDSAY,  3  App.  Gas.  459;  Loeffel  v.  Pohlman,  47  Mo.  App. 
574.    Gf.  EDMUNDS  v.  TRANSPORTATION  CO.,  135  Mass.  283. 

188  Gases  cited,  ante,  p.  200,  note  16. 

18  6  Clark  V.  Thayer,  105  Mass.  216,  7  Am.  Rep.  531;  Smith  v.  Livingston, 
111  Mass.  342 ;  SOUTHWIGK  v.  BANK,  84  N.  Y.  420 ;  Gridley  v.  Bane,  57  IlL 
529 ;  Ormsbee  v.  Howe,  54  Vt  182,  41  Am.  Rep.  841. 

187  See  ante,  p.  19a 


^ 


fj<^' 


240  REALITY  OF  CONSENT.  (Ch.  7 

V1 


DURESS. 


^- 


42.  Duress  Is  aotnal  or  threatened  violence  or  imprisonment,  by  rea- 
son of  nrhich  a  person  is  reasonably  forced  to  enter  into  a  con- 
tract.     To  affect  tbe  contract,  bowrever, 

(a)  It  must  have  been  against  or  of  tbe  contracting  party,  or  his  or 

her  v/if  e,  or  husband,  parent,  child,  or  other  near  relative. 

(b)  It  must  have  been  inflicted  or  threatened  by  the  other  party  to 

the  contract,  or  by  one  acting  xrith  his  knoivledge  or  on  his  be- 
half. 

(c)  It  must  have  induced  the  party  to  enter  into  the  contract. 

143.  OF  GOODS.     By  the  weight  of  modern  authority,  the  unlawful  de- 

tention of  another's   goods  under   oppressive   circumstances,   or 
their  threatened  destruction,  may  constitute  duress. 

144.  EFFECT.      A  contract  entered  into  by  a  person  under  duress  is 

voidable  at  his  option. 

The  ground  upon  which  a  contract  entered  into  under  duress  can 
be  avoided  is  because  there  is  no  real  consent.  The  apparent  consent 
is  unreal  because  of  the  imprisonment  of  "force,  or  of  the  fear  caused 
by  the  threats.  "Actual  violence,"  it  has  been  said,  "is  not  necessary 
to  constitute  duress,  *  *  *  because  consent  is  the  very  essence 
of  a  contract ;  and,  if  there  be  compulsion,  there  is  no  actual  consent ; 
and  moral  compulsion,  such  as  that  produced  by  threats  to  take  life,  or 
to  inflict  great  bodily  harm,  as  well  as  that  produced  by  imprisonment, 
is  everywhere  regarded  as  sufficient,  in  law,  to  destroy  free  agency, 
without  which  there  can  be  no  contract,  because  in  that  state  of  the 
case  there  is  no  consent.  'Duress,'  in  its  more  extended  sense,  means 
that  degree  of  constraint  or  danger,  either  actually  inflicted  or  threat- 
ened and  impending,  which  is  sufficient,  in  severity  or  in  apprehension, 
to  overcome  the  mind  and  will  of  a  person  of  ordinary  firmness."  ^®*' 

188  Pierce  v.  Brown,  7  Wall.  205.  19  L.  Ed.  134.  See,  also,  Baker  v.  Morton, 
12  Wall.  150,  20  L.  Ed.  262;  Foshay  v.  Ferguson,  5  Hill  (N.  Y.)  154;  Eadie 
V.  summon,  26  N.  Y.  12,  82  Am.  Dec.  395;  French  v.  Shoemaker,  14  Wall. 
314,  20  L.  Ed.  852;  U.  S.  v.  Huckabee,  16  Wall.  432,  21  L.  Ed.  457;  Miller  v. 
Miller,  68  Pa.  486;  Guilleaunie  v.  Rowe,  94  N.  Y.  2GS,  46  Am.  Rep.  141;  Har- 
mon V.  Harmon,  61  Me.  227;  Fisher  v.  Shattuck,  17  Pick.  (Mass.)  252;  Got- 
walt  V.  Neal,  25  Md.  434;  Bane  v.  Detrick,  52  111.  19;  Alexander  v.  Pierce, 
10  N.  H.  494 ;  McClair  v.  Wilson,  IS  Colo.  82,  31  Pac.  502 ;  Horton  v.  Bloedorn, 
37  Neb.  666,  56  N.  W.  321;  Batavian  Bank  v.  North,  114  Wis.  637,  90  N.  W. 
1010.  A  threat  by  a  husband  to  separate  from  his  wife  and  not  support  her 
has  been  held  such  duress  as  to  avoid  a  deed  by  her  to  him  induced  thereby. 
Tapley  v,  Tapley,  10  Minn.  448  (Gil.  360),  83  Am.  Dec.  76.  An  angry  command 
by  husband  to  wife,  unaccompanied  bj^  threats  of  pei'sonal  violence,  held  not 
duress.  Gabbey  v.  Forgeus,  38  Kan.  62,  15  Pac.  866.  Merely  to  speak  roughly 
to  a  woman,  Avithout  threats  of  personal  violence,  is  not  duress.  Dausch  v. 
Crane,  109  iNIo.  323,  10  S.  W.  61.  Mere  vexation  and  annoyance  is  not  duress. 
Brower  v.  Callender,  105  111.  88. 


§§  142-144)  DURESS.  241 

The  statement  of  what  constitutes  duress,  made  in  this  and  many 
other  cases/®"  requires  that  the  violence  or  threats  shall  have  been 
sufficient  to  overcome  a  mind  of  "ordinary  firmness/'  or  the  mind  of  a 
person  of  "ordinary  courage."  Some  cases,  however,  have  rejected 
this  test,  holding  that  violence  or  threats  employed  for  the  purpose  of 
overcoming  the  mind,  and  having  that  effect,  constitute  duress,  although 
the  mind  acted  upon  be  one  of  less  than  ordinary  firmness.^®" 

It  is  almost  needless  to  add  that  the  contract  must  have  been  made 
because  of  the  imprisonment,  or  of  fear  of  the  threatened  injury  or  im- 
prisonment; otherwise,  there  is  no  duress.^®^ 

Duress  per  Minas. 

Duress  per  minas,  as  defined  at  common  law,  is  where  a  person  is 
forced  to  enter  into  a  contract  (a)  from  fear  of  loss  of  life ;  (b)  from 
fear  of  loss  of  limb;  (c)  from  fear  of  mayhem;  (d)  from  fear  of  im- 
prisonment,— and  there  is  no  doubt  but  that  threats  of  such  injuries 
will  constitute  duress.^'*  Many  of  the  modern  English  decisions  re- 
strict the  operation  of  the  rule  within  the  limits  mentioned.  They  deny 
that  contracts  procured  by  menace  of  a  mere  battery  to  the  person  can 
be  avoided  on  that  ground;  and  the  reason  assigned  for  this  rule  is 
that  such  threats  are  not  of  a  nature  to  overcome  the  mind  and  will 

189  United  States  v.  Huckabee,  16  Wall.  414,  21  L,  Ed.  457;  Hines  v.  Board, 
93  Ind.  266;  MORSE  v.  WOODWORTH,  155  Mass.  233,  27  N.  E.  1010,  29 
N.  E.  525;  Flanigan  v.  City  of  Minneapolis,  36  Minn.  406,  31  N.  W.  359;  Hor- 
ton  V.  Bloedorn,  37  Neb.  666,  56  N.  W.  320;  Kennedy  v.  Roberts,  105  Iowa,  521, 
75  N.  W.  363. 

IPO  Cribbs  v.  Sowle,  87  Mich.  340,  49  N.  W.  587,  24  Am.  St.  Rep.  166;  Bald- 
win V.  Hutchinson,  8  Ind.  App.  454,  35  N.  E.  711 ;  GALUSHA  v.  SHERMAN, 
105  Wis.  263,  81  N.  W.  495,  47  L.  R.  A.  417.  See,  also,  Parmentier  v.  Taber, 
13  Or.  121,  9  Pac.  59.    See  Bishop,  Cont.  §  719. 

191  Feller  v.  Green,  26  Mich.  70;  Flanigan  v.  City  of  Minneapolis,  36  Minn. 
406,  31  N.  W.  359;  Schwartz  v.  Schwartz,  29  111.  App.  516;  Inhabitants  of 
Whitefield  v.  Longfellow,  13  Me.  146;  Alexander  v.  Pierce,  10  N.  H.  494;  Bos- 
ley  V.  Shanner,  26  Ark.  280 ;  Stone  v.  Weiller,  57  Hun,  588,  10  N.  Y.  Supp.  828 ; 
Post  V.  Bank,  138  111.  559,  28  N.  E.  978. 

192  3  Bac,  Abr.  "Duress,"  252;  Baker  v.  Morton,  12  Wall.  150,  20  L.  Ed. 
262;  and  cases  hereafter  cited.  Threat  of  personal  violence.  Pierce  v.  Brown, 
7  Wall.  205,  19  L.  Ed.  134;  Baker  v.  Morton,  supra;  Magoon  v.  Reber,  76  Wis. 
392,  45  N.  W.  112;  Anderson  v.  Anderson,  74  Hun,  56,  26  N.  Y,  Supp.  492. 
Threat  of  criminal  prosecution  and  imprisonment.  Foshay  v.  Ferguson,  5 
Hill  (N.  Y.)  154;  2  Co.  Inst.  483;  Co.  Litt.  2.53b;  Eadie  v.  Sllmmon,  26  N.  Y. 
9,  82  Am.  Dec.  395;  Inhabitants  of  Whitefield  t.  Longfellow,  13  Me.  146; 
Bane  v.  Detrick,  52  111.  19;  James  v.  Roberts,  18  Ohio,  548;  Baldwin  v.  Hutch- 
ison. 8  Ind.  App.  454,  35  N.  E.  711;  Maricle  v.  Brooks,  51  Hun,  638,  5  N.  Y. 
Supp.  210 ;  Morrison  v.  Faulkner,  SO  Tex.  128,  15  S.  W.  797 ;  Landa  v.  Obert,  78 
Tex.  33,  14  S.  W.  297;  Winfield  Nat.  Bank  v.  Croco,  46  Kan.  620,  26  Pac.  939. 
See  post,  p.  292,  and  cases  cited.  A  threat  to  "make  complaint"  and  send  the 
person  threatened  to  prison  is  not  duress,  where  the  threats  do  not  specify  an 
offense  for  which  Imprisonment  may  be  had,  Kruschke  v.  Stefan,  83  Wis. 
873,  53  N.  W.  679. 

Clakk  Cont.  (2d  Ed.)— 16 


242  EEALITY   OF  CONSENT.  (Ch.  7 

of  a  firm  and  prudent  man.^®^  There  are  cases  to  the  same  effect  in 
this  country,  and  some  of  the  text  writers  have  adopted  the  old  rule.^®* 
Many  American  cases,  on  the  other  hand,  adopt  a  more  liberal  rule, 
and  hold  that  contracts  procured  by  threats  and  fear  of  battery  to  the 
person  may  be  avoided  on  the  ground  of  duress.^" 

Duress  of  Imprisonment. 

Imprisonment  is  any  restraint  of  a  person's  liberty,  whether  it  be 
in  prison  or  elsewhere.  Any  unlawful  imprisonment,  whatever  may 
be  the  ground  of  illegality,  constitutes  duress,  and  avoids  a  contract 
entered  into  by  the  person  imprisoned  for  the  purpose  of  regaining 
his  liberty.^'*  Under  the  older  rule,  the  imprisonment  must  have  been 
illegal;  lawful  imprisonment,  whatever  might  be  the  circumstances, 
was  not  regarded  as  duress;  ^^'^  and  tliis  rule  has  been  adhered  to  in 
some  of  the  modern  cases.^®*  By  the  overwhelming  weight  of  modern 
authority,  however,  the  rule  has  been  so  far  modified  that  now  even 
a  legal  imprisonment  will  constitute  duress  if  the  process  is  sued  out 
maliciously  and  without  probable  cause,  or  if  it  is  sued  out  with  prob- 
able cause,  but  for  an  unlawful  purpose;  as,  for  instance,  where  a 
legal  arrest  for  crime  is  procured  for  the  purpose  of  coercing  payment 
of  a  private  demand,  or  if  the  imprisonment,  though  legal,  is  made  un- 
justly oppressive.^®®  All  the  courts  agree,  however,  that  if  the  im- 
prisonment is  lawful,  and  there  is  no  abuse  of  process,  there  is  no 
duress.2°o 

193  2  Co.  Inst.  483;    Sbep.  Touch.  6;   post,  p.  243. 

194  1  Pars.  Cont.  393. 

18B  Pierce  v.  Brown,  7  Wall.  205,  19  L.  Ed.  134;  Foshay  v.  Ferguson,  5 
Hill  (N.  Y.)  154;    Love  v.  State,  78  Ga.  66,  3  S.  E.  893,  6  Am.  St.  Rep.  234. 

188  Osborn  v.  Robbing,  36  N.  Y.  365;  Guilleaume  v.  Rowe,  94  N.  Y.  268,  46 
Am.  Rep.  141;  Stepney  v.  Lloyd,  Cro.  Eliz.  647,  Ewell,  Lead.  Cas.  760;  Fisher 
V.  Shattuck,  17  Pick.  (Mass.)  252;  Alexander  v.  Pierce,  10  N.  H.  494;  White- 
field  V.  Longfellow,  13  Me.  146;  Thompson  v.  Lockwood,  15  Johns.  (N.  Y.) 
256;   Bowker  v.  Lowell,  49  Me.  429;   Tilley  v.  Damon,  11  Gush.  (Mass.)  247. 

18  7  2  Co.  Inst.  483;   Shep.  Touch.  6. 

188  Clark  V.  Turn  bull,  47  N.  J.  Law,  265,  54  Am.  Rep.  157;  Kelsey  v.  Hob- 
by, 16  Pet.  269,  10  L.  Ed.  961;  Taylor  v,  Cottrell.  16  111.  93;  Heaps  v.  Dunham, 
95  111.  583 ;   McCormick  Harvester  Co.  v.  Miller,  54  Neb.  644,  74  N.  W.  1061. 

188  Watkins  v.  Baird,  6  Mass.  506,  4  Am.  Dec.  170;  Richardson  v.  Duncan, 
3  N.  H.  508;  Selber  v.  Price,  26  Mich.  518;  Eadie  v.  Slimmon,  26  N.  Y.  9,  82 
Am.  Dec.  395;  Schoener  v.  Lissauer,  107  N.  Y.  Ill,  13  N.  E.  741;  Bane  v. 
Detrick,  52  111.  19;  Work's  Appeal,  59  Pa.  444;  Phelps  v.  Zuschlag,  34  Tex. 
371;  Holmes  v.  Hill,  19  Mo.  159;  Foley  v.  Greene,  14  R.  I.  618,  51  Am.  Rep. 
419;  Town  of  Sharon  v.  Gager.  46  Conn.  189;  Bentley  v.  Robson,  117  Mich. 
691,  76  N.  W.  146;   Behl  v.  Schuett,  104  Wis.  76,  80  N.  W.  73. 

200  Soule  V.  Bouney,  87  Me.  128;  Prlchard  v.  Sharp,  51  Mich.  432,  16  N.  W. 
798;  Felton  v.  Gregory,  130  Mass.  176;  Taylor  v.  Cottrell,  16  111.  93;  Nealey 
V.  Greenough,  25  N.  H.  325 ;  Smith  v.  Atwood,  14  Ga.  402 ;  Stouffer  v.  Lat- 
shaw,  2  Watts  (Pa.)  165,  27  Am.  Dec.  297 ;  State  v.  Such,  53  N.  .J.  Law,  351, 
21  Atl.  852;   Meek  v.  Atkinson,  1  Bailey  (S.  C.)  84,  19  Am.  Dec.  653;   Stebbins 


§§  142-144)  DURESS.  243 

The  rule  that  the  imprisonment  must  be  unlawful  applies  equally  to 
duress  per  minas,  where  the  threat  is  of  imprisonment.  A  threat  of 
unlawful  arrest  and  imprisonment  is  duress/"^  but,  as  a  rule,  a  threat 
of  lawful  imprisonment  is  not  A  threat,  for  instance,  by  a  creditor, 
to  bring  a  suit  against  his  debtor,  and  procure  his  arrest  therein,  is  not 
duress  where  the  creditor  may  lawfully  so  proceed.^"*  It  has  also  been 
said,  without  qualification,  that,  if  a  person  has  been  wronged  by  the 
embezzlement  or  other  criminal  act  of,  another,  it  is  not  duress  to 
threaten  him  with  a  criminal  prosecution,  and  thereby  coerce  him  into 
giving  a  note,  or  otherwise  settling  for  the  injury.^"*  As  we  have 
seen,  however,  a  strictly  legal  imprisonment  procured  for  the  purpose 
of  enforcing  a  private  demand  is  an  abuse  of  process,  and  constitutes 
duress ;  and  on  the  same  principle  it  has  been  held  duress  to  threaten 
imprisonment  for  such  a  purpose.^"* 

Duress  of  Goods. 

Under  the  stricter  rule  which  formerly  prevailed,  a  promise  was  not 
given  under  duress  if  made  in  consideration  of  the  release  of  goods 
from  unlawful  destruction  or  detention,  and  there  is  modern  authority 
to  the  same  effect.^"^  Most  courts,  however,  have  established  a  more 
liberal  rule,  and  regard  duress  of  goods  under  oppressive  circumstances 
as  sufficient  to  avoid  a  contract.^"*     Duress  in  this  connection  must  not 


V.  Niles,  25  Miss.  267,  349;  Mascolo  v.  Montesanto,  Gl  Conn.  50,  23  Atl.  714, 
29  Am.  St.  Rep.  170;  Marvin  v.  Marvin,  52  Ark.  425,  12  S.  W.  875,  20  Am.  St. 
Rep.  191.  And  see  Medrano  v.  State,  32  Tex.  Or.  R.  214,  22  S.  W.  684,  40  Am. 
St.  Rep.  775. 

201  Ante,  p.  241,  note  192. 

202  DUNHAM  V.  GRISWOLD,  100  N.  Y.  224,  3  N.  B.  76;  Clark  v.  Tumbull, 
47  N.  J.  Law,  265,  54  Am.  Rep.  157;  Hilborn  v.  Bucknam,  78  Me.  482,  7  Atl. 
272,  57  Am.  Rep.  816. 

208  Eddy  V.  Herrin,  17  Me.  338,  35  Am.  Dec.  261 ;  Hilborn  v.  Bucknam.  78 
Me.  482,  7  Atl.  272,  57  Am.  Rep.  816;  Taylor  v.  Cottrell,  16  111.  93;  Sanford  v. 
Sornborger,  26  Neb.  295,  41  N.  W.  1102;  Thorn  v.  Pinkham,  84  Me.  103,  24  Atl. 
718,  30  Am.  St.  Rep.  335;  Weber  v.  Barrett,  125  N.  Y.  18,  25  N.  E.  1068;  Comp- 
ton  V.  Banii,  96  111.  301. 

2  04  See  MORSE  v.  WOODWORTH,  155  Mass.  233,  27  N.  E.  1010,  29  N. 
E.  525 ;  Adams  v.  Bank,  116  N.  Y.  606,  23  N.  E.  7,  6  L.  R.  A.  491,  15  Am.  St. 
Rep.  447 ;  Miller  v.  Bryden,  34  Mo.  App.  602 ;  Morrison  v.  Faulkner,  80  Tex. 
128,  15  S.  W.  797;  Scbultz  v.  Catlin,  78  Wis.  611,  47  N.  W.  946;  Mon-ill  v. 
Nightingale,  93  Cal.  452,  28  Pac.  1068,  27  Am.  St.  Rep.  207;  Bryant  v.  Peck,  154 
Mass.  460,  28  N.  E.  678;  Lighthall  v.  Moore,  2  Colo.  App.  554,  31  Pac.  511; 
Heaton  v.  Norton  Co.  State  Bank,  59  Kan.  281,  52  Pac.  876. 

20BAtlee  V.  Backhouse,  3  Mees.  &  W.  633;  SKEATE  v.  BEALE,  11  Adol. 
&  E.  983;    Hazelrigg  v.  Donaldson,  2  Mete.  (Ivy.)  445. 

206  Lonergan  v.  Buford,  148  U.  S.  581,  13  Sup.  Ct.  684,  37  L.  Ed.  569; 
U.  S.  v.  Huekabee,  16  Wall.  432,  21  L.  Ed.  457;  Foshay  v.  Ferguson,  5  Hill 
(N.  Y.)  154;  Sasportas  v.  Jennings,  1  Bay  (S.  C.)  470;  Harmony  v.  Bingham, 
12  N.  Y.  99,  62  Am.  Dec.  142;  White  v.  Hey  1  man.  34  Pa.  142;  Motz  v.  Mitchell, 
91  Pa.  114;   Miller  v.  Miller,  68  Pa.  486;   Pemberton  v.  Williams,  87  111.  15; 


244  REALITY   OF   CONSENT.  (Ch.  7 

be  confounded  with  want  of  consideration.  If  the  detention  were  ob- 
viously without  right,  the  promise  would  be  void  because  of  want  of 
consideration;  if  the  right  were  doubtful,  the  promise  might  be  sup- 
ported by  a  compromise. 

Against  Whom. 

As  a  rule  a  contract  entered  into  in  order  to  relieve  a  third  person 
is  not  voidable  on  the  ground  of  duress.^*^^     It  should  be  noted,  how- 

SCHOLEY  V.  MUMFORD,  60  N.  Y.  498;  McPherson  v.  Cox,  86  N.  Y.  472; 
Crawford  v.  Cato,  22  Ga.  594;  Bennett  v.  Ford,  47  Ind.  264;  Oliphant  v.  Mark- 
ham,  79  Tex.  543,  15  S.  W.  569,  23  Am^  St.  Rep.  363;  McCormick  v.  Dalton, 
53  Kan.  146,  35  Pac.  1113;  Fuller  v.  Roberts,  35  Fla.  110,  17  South.  359.  A 
note  given,  or  money  paid,  to  obtain  release  of  goods  from  attachment  fraud- 
ulently obtained,  may,  under  some  circumstances,  be  avoided  or  recovered 
back.  CHANDLER  v.  SANGER,  114  Mass.  364,  19  Am.  Rep.  367;  Collins 
V.  Westbury,  2  Bay  (S.  C.)  211,  1  Am.  Dec.  643;  Spaids  v.  Barrett,  57  111. 
289,  11  Am.  Rep.  10;  Nelson  v.  Suddarth,  1  Hen.  &  M.  (Va.)  350.  But 
seizure  of  property  claimed  by  A.  under  attachment  against  B.  is  not  duress 
of  A.  KINGSBURY  v.  SARGENT,  83  Me.  230,  22  Atl.  105.  So,  where  a  note 
is  given,  or  money  paid,  to  prevent  seizure  of  property  under  execution 
fraudulently  obtained,  Thurman  v.  Burt,  53  111.  129;  or  under  warrant  for 
the  collection  of  illegal  tax  or  assessment,  BOSTON  &  S.  GLASS  CO.  v.  CITY 
OF  BOSTON,  4  Mete.  (Mass.)  181;  BRUECHER  v.  VILLAGE  OF  PORT 
CHESTER,  101  N.  Y,  240,  4  N.  E.  272;  Bradford  v.  City  of  Chicago,  25  111.  411. 
Exactions  by  carrier  before  delivery  of  property.  Beckwlth  v.  Frisbie,  32  Vt, 
559 ;  Tutt  v.  Ide,  3  Blatchf.  249,  Fed.  Cas.  No.  14,275b ;  Harmony  v.  Bingham, 
supra.  Refusal  by  carrier  to  transport  freight.  Little  Rock  &  Ft  S.  Ry. 
Co..  V.  Cravens,  57  Ark.  112,  20  S.  W.  803,  18  L.  R.  A.  527,  38  Am.  St.  Rep. 
230.  Refusal  by  carrier  to  carry  stock  which  has  been  loaded  on  cars,  unless 
shipper  will  sign  special  contract.  Atchison  R.  Co.  v.  Dill,  48  Kan.  210,  29 
Pac.  148.  Refusal  by  banker  to  honor  check  unless  fraudulent  claim  is  acced- 
ed to,  held  duress.  Adams  v.  SchifCer,  11  Colo.  15,  17  Pac.  21,  7  Am.  St.  Rep. 
202.  Threat  to  file  mechanic's  Hen.  Gates  v.  Dundon  (City  Ct  N.  Y.)  18  N. 
Y.  Supp.  149.  Exactions  by  customs  officer  as  condition  to  delivery  of  proper- 
ty. Maxwell  v.  Griswold,  10  How.  242,  13  L.  Ed.  405 ;  ELLIOTT  v.  SWART- 
WOUT,  10  Pet.  137,  9  L.  Ed.  373.  Mere  refusal  of  debtor  to  pay  debt  does  not 
amount  to  duress  of  goods,  even  though  creditor  be  in  straitened  circumstan- 
ces, and  need  the  money.  Hackley  v.  Headley,  45  Mich.  569,  8  N.  W.  511; 
Secor  V.  Clark,  117  N.  Y.  350,  22  N.  E.  754 ;  Cable  v.  Foley,  45  Minn.  421,  47 
N.  W.  1135;  Adams  v.  Schiffer,  11  Colo.  15,  17  Pac.  21,  7  Am.  St.  Rep.  202; 
Doyle  V.  Church,  133  N.  Y.  372,  31  N.  E.  221.  Threat  of  civil  action  not  duress. 
McClair  v.  Wilson,  18  Colo.  82,  31  Pac.  502 ;  Whittaker  v.  Improvement  Co.,  34 
W.  Va.  217,  12  S.  E.  507;  Wilson  S.  M.  Co.  v.  Curry,  126  Ind.  161,  25  N.  E. 
896;  Atkinson  v.  Allen,  71  Fed.  58,  17  C.  C.  A.  570;  York  v.  Hinkle,  80  Wis. 
624,  50  N.  W.  895,  27  Am.  St.  Rep.  73 ;  Bestor  v.  Hickie,  71  Conn.  181,  41  Atl. 
555;  Hart  v.  Strong,  183  111.  349,  55  N.  E.  029.  Threat  to  levy  attachment  or 
execution  Is  not  duress.  Wilcox  v.  Howland,  23  Pick.  (Mass.)  167 ;  Waller  v. 
Cralle,  8  B.  Mon.  (Ky.)  11;  Stover  v.  Mitchell,  45  111.  213.  Threats  to  prevent 
clearance  of  vessel,  with  power  to  carry  out,  is  duress  of  ship's  master.  Bald- 
win V.  Timber  Co.,  65  Hun,  625,  20  N.  Y.  Supp.  490.  And  see  McPherson  v. 
Cox,  supra. 

207  Robinson  v.  Gould,  11  Cush.  (Mass.)  55;    Plummer  v.  People,  16  III.  358; 
Phillips  v.  Henry,  160  Pa.  24,  28  Atl.  477,  40  Am.  fcJt.  Rep.  706;  Jones  v.  Turn- 


§§  142-144)  DURESS.  245 

ever,  that  a  simple  contract,  the  consideration  for  which  is  the  dis- 
charge of  a  third  person  from  illegal  imprisonment,  would  be  void 
for  want  of  consideration.''"^  Though  the  law  does  not  regard  a  per- 
son as  under  duress  who  enters  into  a  contract  to  relieve  a  stranger, 
it  is  otherwise  where  the  person  relieved  is  a  near  relative,  as  a  hus- 
band, wife,  parent,  or  child. ^°°  These  are  the  only  relationships  gen- 
erally mentioned  in  the  books,  but  the  rule  has  been  extended  to 
other  relationships,  as  of  brother,  sister,  grandparent,  or  grandchild.**" 

By  Whom. 

The  duress,  to  be  available  as  a  defense,  must  have  been  inflicted  or 
threatened  by  the  other  party  to  the  contract,  or  by  some  one  acting 
with  his  connivance.^^*  A  person  entering  into  a  contract  with  another 
under  duress  exercised  by  a  third  person  may  avoid  the  contract  if 
the  third  person  was  the  other  party's  agent,  or  if  the  other  party 
knew  the  circumstances,^"  but  not  if  he  acted  in  good  faith  and  with- 
out such  knowledge. 

er,  5  Litt.  (Ky.)  147;  Wright  v.  Remington,  41  N.  J.  Law,  48,  32  Am.  Rep. 
180;  Spaulding  v.  Crawford,  27  Tex.  155;  Lewis  v.  Bannister,  16  Gray  (Mass.) 
500  (creditors).  A  surety  cannot  avoid  a  common-law  bond  or  note  on  the 
ground  that  his  principal  was  under  duress.  Huscombe  v.  Standing,  Cro. 
Jac.  187;  Graham  v.  Marlis,  98  Ga.  67,  25  S.  B.  931.  Contra,  Strong  v.  Gran- 
nis,  26  Barb.  (N.  Y.)  122.  But  it  is  otherwise  in  the  case  of  statutory  bonds, 
such  as  a  bond  given  under  a  statute  to  release  the  principal  from  imprison- 
ment, where  the  imprisonment  is  illegal.  In  such  case  the  officer  has  no  right 
to  take  the  bond,  and  it  is  void.  Thompson  v.  Lockwood,  15  Johns.  (N.  Y.)  256. 
And  see  State  v.  Brantley,  27  Ala.  44 ;  Patterson  v.  Gibson,  81  Ga.  802,  10  S.  E. 
9,  12  Am.  St.  Rep.  356;  Fisher  v.  Shattuck,  17  Pick.  (Mass.)  252;  Jones  v. 
Turner,  5  Litt.  (Ky.)  147.  But  see  Plummer  v.  People,  16  111.  358 ;  Huggins 
V.  People,  39  111.  246;  Inhabitants  of  Bordentown  Tp.  v.  Wallace,  50  N.  J. 
Law,  13,  11  Atl.  267. 

208  Ante,  p.  123. 

209  Harris  v.  Carmody,  131  Mass.  51,  41  Am.  Rep.  188;  Plummer  v.  People, 
16  111.  360;  First  Nat.  Bank  v.  Bryan,  62  Iowa,  42,  17  N.  W.  165;  Lomerson 
V.  Johnston,  44  N.  J.  Eq.  93,  13  Atl.  8;  Brooks  v.  Berryhill,  20  Ind.  97;  South- 
ern Exp.  Co.  V.  Duffey,  48  Ga.  361 ;  Adams  v.  Bank,  116  N.  Y.  600,  23  N.  E.  7,  6 
L.  R.  A.  491,  15  Am.  St.  Rep.  447;  McClatchie  v.  Haslam,  63  Law  T.  376; 
Meech  v.  Lee,  82  Mich.  274,  46  N.  W.  383:  Bryant  v.  Peck,  154  Mass.  460,  28 
N.  E.  678;  CITY  NAT.  BANK  v.  KUSWORM,  88  Wis.  188,  59  N.  W.  564, 
26  L.  R.  A.  48,  43  Am.  St.  Rep.  880;  Giddings  v.  Iowa  Sav.  Bank,  104  Iowa, 
676,  74  N.  W.  21 ;  Heaton  v.  Norman  Co.'s  Bank,  59  Kan.  281,  52  Pac.  876 ; 
Davis  V.  Smith,  68  N.  H.  253,  44  Atl.  384,  73  Am.  St.  Rep.  584. 

210  Schultz  V.  Catlin,  78  Wis.  611,  47  N.  W.  946;  Bradley  v.  Irish,  42  111. 
App.  85.  It  seems  that  it  does  not  extend  to  master  and.  servant.  1  Rolle, 
Abr.  687;   Bac.  Abr.  "Duress,"  B;   2  Brownl.  276. 

2111  Rolle,  Abr.  688;  Fairbanks  v.  Snow,  145  Mass.  153,  13  N.  E.  596,  1 
Am.  St.  Rep.  446;  Fightmaster  v.  Levi  (Ky.)  17  S.  W.  195;  Sherman  v.  Sher- 
man (Com.  PI.  N.  Y.)  20  N.  Y.  Supp.  414;  Compton  v.  Bank,  96  111.  301,  36 
Am.  Rep.  147;   Schwartz  v.  Schwartz,  29  111.  App.  516. 

212  Fairbanks  v.  Snow,  supra;   McClatchie  v.  Haslam,  63  Law  T.  376. 


^ 


246  REALITY   OP   CONSENT.  (Ch.  7 

Effect. 

A  contract  is  not  void  because  it  was  entered  into  under  duress,  but, 
as  in  the  case  of  fraud,  is  merely  voidable  at  the  option  of  the  injured 
party,  and  stands  unless  he  sees  fit  to  avoid  or  rescind  it.  He  may 
either  ratify  or  disaffirm  it,  and  may  do  so  by  his  conduct.-^'  The 
rules  as  to  the  right  to  rescind  a  contract  for  fraud  apply  with  equal 
force  here,  and  it  is  unnecessary  to  repeat  them. 


"UNDUE  INFLUENCE. 

145.  Undue  influence  is  a  species  of  fraud.     It  may  be  said  generally 

to  consist— 

(a)  In  the  use  by  one  in  -nrhom  confidence  is  reposed  by  another,  or 

TO^ho  holds  a  real  or  apparent  authority  over  him,  of  such  con- 
fidence or  authority  for  the  purpose  of  obtaining  an  unfair  ad- 
vantage over  him. 

(b)  In  taking  an  unfair  advantage  of  another's  iveakness  of  mind. 

(c)  In  taking  a  grossly  oppressive  and  unfair  advantage  of  another's 

necessities  and  distress. 

146.  EFFECT.     Undue  influence  renders  a  contract  voidable  at  the  op- 

tion of  the  injured  party. 

Courts  of  equity  have  always  given  a  wider  interpretation  to  the 
term  "fraud"  than  that  adopted  by  the  courts  of  common  law.  Look- 
ing beyond  definite  false  and  fraudulent  statements,  they  have  inferred 
from  a  long  course  of  conduct,  from  the  peculiar  relations  of  the  par- 
ties, or  from  the  circumstances  of  one  of  them,  that  an  unfair  ad- 
vantage has  been  taken  of  the  promisor,  and  that  his  promise  ought 
not,  in  equity,  to  bind  him.  The  taking  of  such  an  unfair  advantage  is 
sometimes  called  "fraud,"  but  it  is  more  convenient,  for  the  purpose 
of  distinguishing  it  from  the  kind  of  fraud  with  which  we  have  already 
dealt,  to  call  it  the  "exercise  of  undue  influence."  ^^*  It  is  difficult  to 
give  a  clear  and  concise  definition  of  "undue  influence"  because  of  the 
wide  meaning  of  the  term.     The  definition  given  in  the  black-letter 

213  Miller  v.  Minor,  98  Mich.  163,  57  N.  W.  101,  39  Am.  St.  Rep.  524;  Fair- 
banks V.  Snow,  145  Mass.  153,  13  N.  E.  596,  1  Am.  St.  Rep.  446;  OREGON 
PAC.  R.  CO.  V.  FORREST,  128  N.  Y.  83,  28  N.  E.  137;  Veach  v.  Thompson, 
15  Iowa,  380;  Belote  v.  Henderson,  5  Cold.  (Tenn.)  472,  98  Am.  Dec.  432; 
Brown  v.  Peck,  2  Wis.  261;  Deputy  v.  Stapleford,  19  Cal.  302;  Eberstein  v. 
Willets,  134  111.  101,  24  N.  E.  967;  Bush  v.  Brown,  49  Ind.  577,  19  Am.  Rep. 
695;  Sornborgcr  v.  Sanfoid,  34  Neb.  498,  52  N.  W.  368;  Commercial  Nat. 
Bank  v.  Wheelock,  52  Ohio  St.  534,  40  N.  E.  636,  49  Am.  St.  Rep.  738.  Post, 
P-  234.  A  negotiable  instrument  executed  under  duress  is  binding  in  hands 
of  bona  fide  purchaser  for  value.  Hogan  v.  Moore,  48  Ga.  15G ;  Clark  v.  Pease, 
41  N.  H.  414 ;  THOMPSON  v.  NIGGLEY,  53  Kan.  664,  35  Pac.  290,  26  L.  R, 
A.  803. 

214  Anson,  Cont.  (4th  Ed.)  165. 


§§  145-146)  UNDUE   INFLUENCE.  247 

text,  and  taken  substantially  from  the  proposed  New  York  Code,  is 
probably  as  good  as  can  be  framed  without  going  beyond  a  mere  defini- 
tion.'^' Another  good  definition  is  given  by  an  English  judge,  who, 
in  speaking  of  the  sort  of  cases  "which  *  *  *  raise,  from  the  cir- 
cumstances and  conditions  of  the  parties  contracting,  a  presumption  of 
fraud,"  says:  "Fraud  does  not  here  mean  deceit  or  circumvention;  it 
means  an  unconscientious  use  of  the  power  arising  out  of  these  cir- 
cumstances and  conditions ;  and,  when  the  relative  position  of  the  par- 
ties is  such  as  prima  facie  to  raise  this  presumption,  the  transaction 
cannot  stand  unless  the  person  claiming  the  benefit  of  it  is  able  to  repel 
the  presumption  by  contrary  evidence,  proving  it  to  have  been,  in  puiu. 
of  fact,  fair,  just,  and  reasonable."  ^^® 

Neither  in  law  nor  in  morals  is  a  person  standing  in  confidential  re- 
lations to  another  prohibited  from  exerting  any  influence  whatever  to 
obtain  a  benefit  to  himself.  The  influence  must  be  what  the  law  re- 
gards as  "undue  influence."  '^''  "Influence  obtained  by  modest  persua- 
sion, and  arguments  addressed  to  the  understanding,  or  by  mere  ap- 
peals to  the  afifections,  cannot  properly  be  termed  'undue  influence'  in 
a  legal  sense ;  ^^^  but  influence  obtained  by  flattery,  importunity,  su- 
periority of  will,  mind,  or  character,  or  by  what  art  soever  that  human 
thought,  ingenuity,  or  cunning  may  employ,  which  would  give  do- 
minion over  the  will"  of  a  person  "to  such  an  extent  as  to  destroy  the 
free  agency,^  ^®  or  constrain  him  to  do  against  his  will  what  he  is  un- 
able to  refuse,  is  such  an  influence  as  the  law  condemns  as  undue."  '^^ 

The  Presumption  from  Circumstances. 

When  it  is  said  that  equity  presumes  prima  facie  the  exercise  of  un- 
due influence  from  the  circumstances,  we  mean  that,  when  certain  cir- 
cumstances are  shown  to  have  existed,  the  court  will,  from  that  alone, 
hold  that  the  contract  was  procured  by  undue  influence,  and  will  relieve 
the  promisor  unless  the  promisee  assumes  the  burden  of  proof,  and 
shows  that  everything  was  fair  and  just.^^^     In  some  cases  the  relation 

215  Proposed  N.  Y.  Civ.  Code,  231. 

218  Lord  Selbourne,  in  Earl  of  Aylesford  v.  Morris,  8  Ch.  490.  See,  also, 
Green  v.  Ro worth,  113  N.  Y.  462,  21  N.  E.  165;  Nelson's  Will,  39  Minn.  204,  39 
N.  W.  143. 

217  Wallace  v.  Harris,  32  Mich.  397. 

218  Rogers  V.  Higgins,  57  111.  244;  Wise  v.  Foote,  81  Ky.  10;  Hale  v.  Cole, 
31  W.  Va.  576,  8  S.  E.  516;  Beith  v.  Beith,  76  Iowa,  601,  41  N.  W.  371: 
Black  V.  Foljambre,  39  N.  J.  Eq.  234 ;  Sturtevant  v.  Sturtevant,  116  111.  340, 
6  N.  E.  428;  Bowdoin  College  v.  Merrett  (C.  C.)  75  Fed.  480;  In  re  Coleman's 
Estate,  193  Pa.  605,  44  Atl.  1085. 

218  Latham  v.  Udell,  38  Mich.  238;  Layman  v.  Conrey,  60  Md.  286. 

220  Schofleld  v.  Walker  (In  re  Disbrow's  Estate)  58  Mich.  96,  24  N.  W.  624. 

221  Dent  V.  Bennett,  4  Mylne  &  C.  269;  Cowee  v.  Cornell,  75  N.  T.  91,  31 
Am.  Rep.  428,  at  page  99;  Fisher  v.  Bishop,  108  N.  Y.  25,  15  N.  E.  331,  2 
Am.  St.  Rep.  357;  Woodbm.'y  v.  Woodbm-y,  141  Mass.  329,  5  N.  E.  275,  55  Am. 


248  REALITY  OF  CONSENT.  (Ch.  7 

alone,  being  confidential,  raises  the  presumption.  In  others,  the  con- 
fidential character  of  the  relation  must  be  shown.  In  others,  want  or 
inadequacy  of  consideration  will  raise  the  presumption. ^^^ 

"We  may  therefore  frame  the  question  we  have  to  discuss  somewhat 
in  this  way :  When  a  man  demands  equitable  remedies,  either  as  plain- 
tiff or  defendant,  seeking  to  escape  the  effects  of  a  grant  which  he  has 
made  gratuitously,  or  a  promise  which  he  has  given  upon  a  very  in- 
adequate consideration,  what  must  be  shown  in  addition  to  this  in  order 
to  raise  the  presumption  that  undue  influence  has  been  at  work?"**" 

Relationship  of  Parties — Parental  and  Quasi  Parental  Relation. 

One  class  of  circumstances  which  will  raise  the  presumption  that  un- 
due influence  was  used  in  procuring  another  to  enter  into  a  contract 
is  where  the  party  benefited  stood  in  some  such  relation  to  him  as  to 
render  him  peculiarly  subject  to  influence.  Parental  or  quasi  parental 
relations  subsisting  between  promisor  and  promisee,  or  grantor  and 
grantee,  will  raise  this  presumption.^^*  Where  an  orphan  who  had 
been  living  with  her  uncle  for  seven  years  became  security  for  him 
soon  after  attaining  her  majority,  it  was  said  by  the  court,  adverting  to 
the  fact  that  the  security  was  obtained,  through  the  influence  of  one 
standing  in  loco  parentis,  from  the  object  of  his  protection  and  care: 
"This  is  a  transaction  which,  under  ordinary  circumstances,  this  court 
will  not  allow.  *  ♦  ♦  This  court  does  not  interfere  to  prevent  an 
act,  even  of  bounty,  between  parent  and  child,  but  it  will  take  care  (un- 
der the  circumstances  in  which  the  parent  and  child  are  placed  before 
the  emancipation  of  the  child)  that  such  child  is  placed  in  such  a  posi- 
tion as  will  enable  him  to  form  an  entirely  free  and  unfettered  judg- 
ment, independent  altogether  of  any  sort  of  control."  ^*° 

Same — Other  Family  Relations. 

The  term  "parental  relations"  applies,  not  only  to  the  actual  relation 
of  parent  and  child,  and  of  one  in  loco  parentis  and  child,  but  extends 
to  husband  and  wife,  brother  and  brother  or  sister,  and  to  all  cases 

Rep.  479;  Greenfield's  Estate,  14  Pa.  489;  Jones  v.  Lloyd,  117  111.  597,  7  N.  E. 
119;  Sands  v.  Sands,  112  111.  225;  Ward  v.  Armsti-ong,  84  111.  151;  Zeigler 
V.  Hughes,  55  III.  288;  Jennings  v.  McConnel,  17  111.  148;  Casey  v.  Casey,  14 
111.  112. 

2  22  Ante,  p.  60.  The  acceptance  of  a  voluntary  donation  throws  upon  the  ac- 
ceptor the  necessity  of  proving  that  the  transaction  was  just.  Houghton  v. 
Houghton,  15  Beav.  299. 

223  Anson,  Cont.  (4th  Ed.)  166. 

224  Taylor  v.  Taylor,  8  How.  183,  12  L.  Ed.  1040;  Miskey's  Appeal,  107 
Pa.  Gil;  Noble's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  GO  Am.  Rep.  175; 
Highberger  v.  Stiffler,  21  Md.  338,  83  Am.  Dec.  593;  Berkmeyer  v.  Kellermau, 
32  Ohio  St  239,  30  Am.  Rep.  577;  Brown  v.  Burbank,  64  Cal.  99,  27  Pac.  940; 
Clutter  V.  Clutter,  8  Ky.  Law  Rep.  956,  4  S.  W.  182;  Sayles  v.  Christie,  187  III. 
420,  58  N.  E.  480.    But  see  Jenkins  v.  Pye,  12  Pet.  241,  9  L.  Ed.  1070. 

22B  Archer  v.  Hudson,  7  Beav.  560. 


§§  145-146)  UNDUE   INFLUENCE.  249 

in  which  one  member  of  a  family,  from  age,  character,  or  circumstan- 
ces, exercises  a  substantial  preponderance  of  authority  in  the  family 
councils.--* 

Sa)n e — Pidxi ciary  R elatio ns. 

Persons  standing  in  a  fiduciary  relation  occupy  a  relation  of  con- 
fidence, and  are  within  this  equitable  rule.  A  contract  between  a  trus- 
tee and  his  cestui  que  trust,^^^  or  between  a  guardian  and  his  ward,^^* 
is  looked  upon  with  suspicion.  It  is  presumed  that  the  trustee  or 
guardian  who  is  benefited  by  the  promise  of  his  cestui  que  trust  or  ward 
has  used  his  peculiar  position  of  confidence  to  his  own  advantage,  and, 
in  order  that  the  contract  may  stand,  he  must  show  the  contrary. 

Same — Other  Confidential  Relations. 

The  power  which  a  spiritual  adviser  may  acquire  over  persons  sub- 
ject to  his  influence  is  also  looked  upon  as  raising  the  presumption  of 
undue  influence;  ^^^  and  to  this  may  be  added  a  number  of  other  rela- 
tions, such  as  attorney  or  solicitor  and  client,*^°  and  doctor  and  pa- 
tient.^^^  The  relations  mentioned  are  not  all.^^*  The  courts  have  not 
limited  or  defined  the  relations  which  they  will  regard  as  raising  this 

226  Green  v,  Roworth,  113  N.  Y.  462,  21  N.  E.  165;  Harvey  v.  Mount,  8  Beav, 
439 ;  Graham  v.  Burch,  44  Minn.  33,  46  N.  W.  148 ;  Smyley  v.  Reese,  53  Ala.  89, 
25  Am.  Rep.  598;  Watkins  v.  Brant,  46  Wis.  419,  1  N.  W.  82;  Bowe  v.  Bowe, 
42  Mich.  195,  3  N.  W.  843;  Golding  v.  Golding,  82  Ky.  51;  Swiashelm's  Ap- 
peal, 56  Pa.  475,  94  Am.  Dec.  107;  HUI  v.  Miller,  50  Kan.  659,  32  Pac.  354; 
Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528;  Brown  v. 
Burbank,  64  Cal.  99,  27  Pac.  940;  Greene  v.  Greene,  42  Neb.  634,  60  N.  W. 
937,  47  Am.  St.  Rep.  724;   Woods  v.  Roberts,  185  111.  489,  57  N.  E.  426. 

227  Spencer's  Appeal,  80  Pa.  317;  Ward  v.  Armstrong,  84  111.  151;  Jones 
V.  Lloyd,  117  111.  597,  7  N.  E.  119;  Nichols  v.  McCarthy,  53  Conn.  299,  23  Atl. 
93,  55  Am.  Rep.  105 ;  McCants  v.  Bee,  1  McCord,  Eq.  (S.  C.)  383,  16  Am.  Dec. 
610.    Principal  and  agent.     Burke  v.  Taylor,  94  Ala.  530,  10  South.  129. 

228  Ashton  V.  Thompson,  32  Minn.  25.  18  N.  W.  918;  Wickiser  v.  Cook,  85 
111.  68;  Wade  v.  Pulsifer.  54  Vt.  45;  Bowe  v.  Bowe,  42  Mich.  195,  3  N.  W. 
843 ;  Garvin's  Adm'r  v.  Williams,  44  Mo.  465,  100  Am.  Dec.  314 ;  Id.,  50  Mo. 
206. 

229  Huguennin  v.  Baseley,  14  Ves.  273;  Marx  v.  McGlynn,  88  N.  Y.  357; 
Corrigan  v.  Pironi,  48  N.  J.  Eq.  607,  23  Atl.  355;  Ross  v.  Conway,  92  Cal. 
632.  28  Pac.  7S5;  Finegan  v.  Theisen,  92  Mich.  173,  52  N.  W.  619;  Ford  v. 
Hennessy,  70  Mo.  580.  Spirit  medium's  influence  over  believer  in  spiritualism. 
Thompson  v.  Hawks  (C.  C.)  14  Fed.  902;  Connor  v.  Stanley,  72  Cal.  556,  14 
Pac.  306,  1  Am.  St.  Rep.  84. 

230  St.  Leger's  Appeal,  34  Conn.  434,  91  Am.  Dec.  735 ;  Carter  v.  West,  93 
Ky.  211,  19  S.  W.  592 ;  McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St. 
Rep.  848;  Jennings  v.  McConnel,  17  111.  148;  Zeigler  v.  Hughes,  55  HI.  288; 
Ryan  v.  Ashton,  42  Iowa,  305. 

231  Audenreid's  Appeal,  89  Pa.  114,  33  Am.  Rep.  731;  Woodbury  v.  Wood- 
bury, 141  Mass.  329,  5  N.  E.  275,  55  Am.  Rep.  479;  Dent  v.  Bennett,  4  Mylue 
&,  C.  269 ;  Blackie  v.  Clark,  15  Beav.  603 ;  Cadwallader  v.  West,  48  Mo.  4S3 ; 
Watson  v.  Mahan,  20  Ind.  227. 

2o2Deut  V.  Bennett,  4  Mylne  &  C.  269;  Drake's  Appeal,  45  Conn.  9;  Boyd 
V.  De  La  Montagnie,  73  N.  Y.  498,  29  Am.  Rep.  197;   Pierce  v.  Pierce,  71  N.  Y. 


250  REALITY  OF  CONSENT.  (Ch.  7 

presumption  of  influence.  The  principle,  it  is  said,  applies  to  every 
case  where  "influence  is  acquired  and  abused,  where  confidence  is  re- 
posed and  betrayed."  ^^^  Thus,  where  a  young  man  who  had  just  at- 
tained his  majority  incurred  heavy  liabilities  to  a  person  by  the  con- 
trivance of  an  older  man  who  had  acquired  a  strong  influence  over  him, 
and  who  professed  to  assist  him  in  a  career  of  extravagance  and  dissi- 
pation, it  was  held  that  influence  of  this  nature  entitled  the  young  man 
to  the  protection  of  the  court.  "The  principle,"  it  was  said,  "applies  to 
every  case  where  influence  is  acquired  and  abused,  where  confidence  is 
reposed  and  betrayed.  The  relations  with  which  the  court  of  chancery 
most  ordinarily  deals  are  those  of  trustee  and  cestui  que  trust,  and  such 
like.  It  applies  especially  to  those  cases,  for  this  reason,  and  for  this 
reason  only :  that  from  those  relations  the  court  presumes  confidence 
put  and  influence  exerted,  whereas,  in  all  other  cases  where  those 
relations  do  not  subsist,  the  confidence  and  the  influence  must  be  proved 
extrinsically.  But,  where  they  are  proved  extrinsically,  the  rules  of 
reason  and  common  sense,  and  the  technical  rules  of  a  court  of  equity, 
are  just  as  applicable  in  the  one  case  as  the  other."  ^^* 

Same — Continuance  of  Presumption. 

The  presumption  of  undue  influence  from  the  parental  or  quasi 
parental  relation  does  not  cease  as  soon  as  the  child  becomes  of  age  and 
is  emancipated  in  law.  His  judgment  must  also  be  emancipated.  The 
confidential  relation  and  consequent  presumption  of  undue  influence 
continues  until  the  child  is  entirely  released  from  any  sort  of  con- 
trol;  "^^^  and  the  same  principle  applies  to  the  relation  of  guardian  and 
ward  and  the  other  confidential  relations. ^^* 

154,  27  Am.  Rep.  22;  Darlington's  Appeal,  86  Pa.  512,  27  Am.  Rep.  726; 
Rockafellow  v.  Newcomb,  57  111.  186;  Cadwallader  v.  West,  48  Mo.  483;  Cas- 
par! V.  Church,  82  Mo.  649;  Allcord  v.  Skinner,  36  Ch.  Div.  145;  Hessick  v. 
Hessick,  1G9  111.  486,  48  N.  E.  712;  Russell  v.  Russell,  60  N.  J.  Eq.  282,  47 
Atl.  37.  As  to  master  and  seiTant,  Doran  v.  McConlogue,  150  Pa.  98,  24 
Atl.  357. 

233  Sears  v.  Shafer,  6  N.  Y.  268;  Fisher  v.  Bishop,  108  N.  Y.  25,  15  N.  E. 
331,  2  Am.  St.  Rep.  357;  Long  v.  Mulford,  17  Ohio  St.  484,  93  Am.  Dec.  638; 
Leighton  v.  OiT,  44  Iowa,  679;  Haydock  v.  Haydock's  Ex'rs,  34"  N.  J.  Eq.  570, 
38  Am.  Rep.  385;  McCormick  v.  Malin,  5  Blackf.  (Ind.)  509;  Todd  v.  Grove, 
33  Md.  188;  Cherbonnier  v.  Evitts,  56  Md.  276;  Hansen  v.  Berthelsen,  19 
Neb.  433,  27  N.  W.  423;  McClure  v.  Lewis,  72  Mo.  314;  Williams  v.  Collins, 
67  Iowa,  413,  25  N.  W.  682;  Hauna  v.  Wilcox,  53  Iowa,  547,  5  N.  W.  717; 
Reed  v.  Peterson,  91  111.  288;  NoiTis  v.  Tayloe,  49  111.  17,  95  Am.  Dec.  568; 
Courtney  v.  Blackwell,  150  Mo.  245,  51  S.  W.  668. 

234  Smith  V.  Kay,  7  H.  L.  Cas.  750,  779.  See,  also,  Knott  v.  Tidyman,  86 
Wis.  164,  56  N.  W.  632. 

28BArcher  v.  Hudson,  7  Beav,  560;  Ashton  v.  Thompson,  32  Minn.  25,  18 
N.  W.  918;  Noble's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  00  Am.  Rep. 
175 ;    Miller  v.  Simonds,  72  Mo.  669 ;    Wliite  v.  Ross,  160  111.  56,  43  N.  E.  336. 

aae  Rhodes  v.  Bates,  L.  R.  1  Ch.  252;   Mitchell  v.  Homfray,  8  Q.  B.  Dlv.  587. 


§§  145-146)  UNDUE   INFLUENCE,  251 

Mental  Weakness. 

Mere  weakness  of  intellect,  not  so  great  as  to  render  the  person  non 
compos  mentis,  will  not  of  itself  affect  the  validity  of  a  contract.^^^ 
If,  however,  the  other  party  has  taken  advantage  of  such  weakness, 
and  by  the  use  of  fraud  and  undue  influence  has  made  an  unfair  con- 
tract, it  will  be  set  aside.-^^ 

Personal  Influence  Absent — Advantage  Taken  of  Another's  Necessi- 
ties and  Distress. 

The  doctrine  of  undue  influence  has  been  extended  to  a  class  of  cases 
from  which  the  element  of  personal  influence  is  altogether  absent. 
They  all  appear  to  possess  these  common  features,  namely,  that  the 
promisor  incumbers  himself  with  heavy  liabilities  for  the  sake  of  a 
small  gain,  or,  at  any  rate,  an  inadequate  present  gain ;  and  the  prom- 
isee takes  advantage  either  of  the  improvidence  and  moral  weakness, 
or  else  of  the  ignorance  and  unprotected  situation  of  the  promisor,  or, 
as  stated  in  the  black-letter  text,  takes  an  unfair  advantage  of  the  prom- 
isor's weakness  of  mind,^^"  or  of  his  necessities  and  distress. ^**'  The 
law  has  attempted  by  statute  in  some  jurisdictions,  as  in  case  of  the 
usury  laws,  to  guard  against  advantage  being  taken  against  persons 
in  such  a  situation,  and  courts  of  equity  at  one  time  adopted  a  rule  that 
purchasers  of  any  reversionary  interest  might  always  be  called  upon 
to  show  that  they  had  given  full  value  for  their  bargains,  so  that  they 
might  not  take  advantage  of  a  man's  present  necessities  to  deprive  him 
of  his  future  estates  without  reasonable  return.-*^  The  usury  laws  do 
not  exist  in  all  jurisdictions,  and  the  rule  as  to  reversionary  interests 
has  been,  to  a  great  extent,  abrogated  by  statute  in  England,  and  is 
recognized  in  very  few  cases  with  us.  If,  however,  a  man,  even  in  the 
absence  of  usury  laws,  tal<es  advantage  of  the  present  poverty  of  an 
expectant  heir  to  extort  from  him  an  exorbitant  and  ruinous  rate  of 
interest,  he  is  liable  to  have  the  bargain  set  aside,  and  to  be  remitted 
to  his  claim  for  the  amount  of  money  he  has  actually  advanced,  with 


«87  Ante,  p.  179. 

238  Norton  v.  Norton,  74  Iowa,  161,  37  N.  W.  129;  Tracey  v.  Sacket,  1 
Ohio  St.  54,  58,  59  Am.  Dee.  610;  Rider  v.  Miller,  86  N.  Y.  507;  Morton's 
Adm'r  v.  Morton  (N.  J.  Ch.)  8  Atl.  807;  Oakey  v.  Ritchie,  69  Iowa,  69,  28  N. 
W.  448;  Allore  v.  Jewell,  94  U.  S.  506,  24  L.  Ed.  260;  Griffith  v.  Godey,  113 
U.  S.  89,  5  Sup.  Ct.  383,  28  L.  Ed.  934;  Fishbiirne  v.  Ferguson's  Heirs,  84  Va. 
87,  4  S.  E.  575;  Moore  v.  Moore,  56  Cal.  89;  Rippy  v.  Grant,  39  N.  C.  443; 
Churchill  v.  Scott,  65  Mich.  485,  32  N.  W.  737. 

280  Selden  v.  Myers,  20  How.  506,  15  L.  Ed.  976. 

2*0  Moore  v.  Moore,  81  Cal.  195,  22  Pac.  589 ;  Wooley  v.  Drew,  49  Mich. 
290,  13  N.  W.  594;  McCants  v.  Bee,  1  McCord,  Eq.  (S.  C.)  383,  16  Am.  Dec. 
610. 

241  Chesterfield  v.  Jansen,  2  Ves.  125;  1  White  &  T.  Lead.  Cas.  Eq.  428; 
Jenkins  v.  Pye,  12  Pet.  241,  9  L.  Ed.  1070. 


252  REALITY  OF  CONSENT.  (Cb.  7 

the  current  rate  of  interest  upon  it.^*^  "In  ordinary  cases,"  it  is  said, 
"each  party  to  a  bargain  must  take  care  of  his  own  interest,  and  it  will 
not  be  presumed  that  undue  advantage  or  contrivance  has  been  resorted 
to  on  either  side ;  but  in  the  case  of  'the  expectant  heir,'  or  of  persons 
under  pressure  without  adequate  protection,  and  in  the  case  of  dealings 
with  uneducated,  ignorant  persons,  the  burden  of  showing  the  fair- 
ness of  the  transaction  is  thrown  on  the  person  who  seeks  to  obtain  the 
benefit  of  the  contract."  ^*^  The  court  will  look  to  the  reasonableness 
of  the  transaction  under  all  the  circumstances  of  the  case;  and  if  it 
appears  that  one  has  taken  advantage  of  the  unprotected  condition  of 
the  other  to  drive  a  hard  bargain,  whether  such  condition  arose  from 
mental  or  moral  weakness  or  ignorance,  or  from  present  necessity  and 
distress,  the  transaction  will  not  be  allowed  to  stand. ^** 

Another  case  in  which  this  rule  has  been  applied  is  in  the  case  of  a 
sale  of  the  equity  of  redemption  by  a  mortgagor  to  the  mortgagee. 
The  sale  may  be  avoided  by  the  mortgagor  if  any  undue  advantage  was 
taken  of  his  necessities.**' 

Eifect. 

The  rules  respecting  the  right  to  rescind  contracts  entered  into  under 
undue  influence  follow,  so  far  as  equity  is  concerned,  the  rules  which 
apply  to  fraud,***  but  with  one  noticeable  qualification.  In  the  case  of 
fraud,  so  soon  as  the  fraud  is  discovered,  the  parties  are  placed  on  equal 
terms,  and  an  affirmation  of  the  contract  binds  the  party  who  was  orig- 
inally defrauded ;  but  in  the  case  of  undue  influence  it  is  not  a  particu- 
lar statement,  but  a  combination  of  circumstances,  which  constitutes 
the  vitiating  element  in  the  contract,  and  unless  it  is  clear  that  the  will 

«4«AyIesfora  v.  Morris,  8  Ch.  484.  Anson,  Ck)nt.  (4th  Ed.)  169.  And  see 
cases  cited  in  note  244,  infra.  The  mere  fact,  however,  that  exorbitant  interest 
is  charged  does  not  show  that  the  contract  is  unconscionable.  Wliittier  v. 
Collins,  15  R.  I.  44,  23  Atl.  39.  Where  there  is  no  actual  fraud,  and  no  fidu- 
ciary relation  between  the  purchaser  of  a  reversionary  Interest  and  his  ven- 
dor, mere  inadequacy  of  consideration  is  not  sufficient  to  avoid  the  sale  un- 
less it  is  so  great  as  to  shock  the  moral  sense.  Mayo's  Ex'r  v.  Carrington's 
Ex'r,  19  Grat.  (Va.)  74;  Cribbins  v.  Markwood,  13  Grat.  (Va.)  495,  67  Am. 
Dec.  77.5.  And  see  Parmelee  v.  Cameron,  41  N.  Y.  392;  Davidson  v.  Little,  22 
Pa.  245,  60  Am.  Dec.  81. 

24  3  O'Rorke  v.  Bolingbroke,  8  App.  Cas.  823. 

244  Benyon  v.  Cook,  10  Ch.  389;  Hough's  Adm'rs  v.  Hunt,  2  Ohio,  495. 
15  Am.  Dec.  569;  Boynton  v.  Hubbard,  7  Mass.  112;  Parsons  v.  Ely,  45  111. 
232;  Butler  v.  Duncan,  47  Mich.  94,  10  N.  W.  123,  41  Am.  Rep.  711;  Kelley 
V.  Caplice,  23  Kan.  474,  33  Am.  Rep.  179;  Jenkins  v.  Pye,  12  Pet.  241,  9  L. 
Ed.  1070;  Bacon  v.  Bonham,  33  N.  J.  Eq.  614,  617;  Mastin  v.  Marlow,  65  N.  C. 
695. 

24  5  Peugh  v.  Davis,  96  U.  S.  337,  24  L.  Ed.  775;  Oliver  v.  Cunningham  (C. 
C.)  7  Fed.  689;    Dorrill  v.  Eaton,  35  Mich.  302;   Jones,  Mtg.  (5th  Ed.)  §  711. 

240  Burt  V.  Quisen])erry,  132  111.  385,  24  N.  E.  622;  CITY  NAT.  BANK  OF 
DAYTON  V.  KUSWORM,  91  Wis.  166,  64  N.  W.  &43;    ante,  p.  234. 


§§  145-146)  UNDUE   INFLUENCE.  253 

of  the  injured  party  is  relieved  from  the  dominant  influence  under  which 
it  has  acted,  or  that  the  imperfect  knowledge  with  which  he  entered 
into  the  contract  is  supplemented  by  the  fullest  assistance  and  informa- 
tion, an  affirmation  will  not  be  allowed  to  bind  him.^*^  As  in  the  case 
of  duress,  the  undue  influence  must  have  been  exercised  by  or  with  the 
cognizance  of  the  other  party. **•• 

247  Anson,  Cont.  (4th  Ed.)  169;   Moxon  v.  Payne,  8  Ch.  881. 

2*8  Dent  V.  Long,  90  Ala.  172,  7  South.  640.  Contra,  where  the  other  party 
has  not  paid  a  valuable  consideration,  Graham  v.  Burch,  44  Minn.  33,  46  N. 
W.  148. 


254 


LEGALITY  OF  OBJECT. 


(Ch.  8 


CHAPTER  Vm. 


LEGALITY  OF  OBJECT. 

147.  In  General. 

148.  Classification  of  Unlawful  Agreements. 

149.  Agreements  in  Violation  of  Positive  Law. 

150.  Breach  of  Rules  of  Common  Law. 

151.  Breach  of  Statute — Constitutional  Law. 

152.  Prohibition  by  Statute. 

153.  Particular  Agreements  in  Breach  of  Statute. 
154-155.  Agreements  Contrary  to  Public  Policy. 

156.  Agreements  Tending  to  Injure  the  Public  Service. 

157.  Nonofficial  Corruption. 

158-160.  Perversion  or  Obstruction  of  Justice. 

161.  Encouragement  of  Litigation — Champerty  and  Maintenance. 

162.  Agreements  of  Immoral  Tendency. 

163.  Agreements  Tending  to  Fraud  and  Breach  of  Trust 

164.  Agreements  in  Derogation  of  the  Marriage  Relation. 

165.  Agreements  in  Derogation  of  Parental  Relation. 
166-169.  Agreements  in  Restraint  of  Trade. 

170-172.  Unlawful  Combinations — Monopolies,  Trusts,  etc. 

173-175.  Exempting  from  Liability  for  Negligence. 

176.  Effect  of  Illegality — Agreements  Partly  Illegal. 
177-178.  Object  Unlawful  but  Intention  Innocent. 

179-181.  Object  Innocent  but  Intention  Unlawful. 

182.  Promises  to  Pay  Money  Due  on  Illegal  Transactions. 

183-185.  Relief  of  Party  to  Unlawful  Agreement 

186.  Conflict  of  Laws — In  Space. 

187.  In  Time. 

• 

IN   GENERAL. 


147.   An  agreement  is  not  enforceable  at  law^,  and  therefore  does  not 
resnlt  in  a  contract,  if  its  object  is  illegal. 


We  come  now  to  deal  with  the  only  remaining  element  in  the  forma- 
tion of  a  valid  contract, — the  legality  of  the  matter  or  object  of  the 
agreement.  To  result  in  a  contract,  an  agreement  must  create  an 
obligation;  and  it  does  not  create  an  obligation  if  it  is  such  that  the 
courts  cannot  enforce  it.  An  agreement,  therefore,  which  is  illegal  or 
unlawful,  is  in  fact  no  contract  at  all,  though  it  is  often  spoken  of  as 
an  illegal  contract. 

As  a  rule  the  law  does  not  interfere  with  the  freedom  of  persons  to 
enter  into  contracts,  but  some  limitations  are  imposed.  Certain  objects 
are  forbidden,  and  though  all  the  other  elements  necessary  to  the 
formation  of  a  valid  contract  may  be  present,  yet  if  one  of  these  for- 


§§  148-149)        AGREEMENTS   IN   VIOLATION    OF   POSITIVE   LAW.  255 

bidden  objects  is  contemplated  by  the  parties,  the  courts  will  not  en- 
force their  agreement.    The  object  makes  the  agreement  unlawful. 


CLASSIFICATION  OF  UTTLAWFUL  AGREEMENTS. 

148.    For  convenience  in  treatment,  unlaivfnl  agreements  stay  be  clas- 
sified, according  to  their  matter  or  object,  as 

(a)  Agreements  in  violation  of  positive  laxr;    and 

(b)  Agreements  contrary  to  public  policy. 

The  distinction  here  made  between  agreements  in  violation  of  posi- 
tive law  and  agreements  contrary  to  public  policy  is  in  the  reasons 
which  determine  the  law  to  hold  the  agreement  void,  and  not  in  the 
nature  or  operation  of  the  law  itself.  The  nullity  of  the  agreement 
itself  is  in  every  case  a  matter  of  positive  law ;  ^  but  in  one  class  of/cases 
the  acts  contemplated  by  the  agreement  are  prohibited  by  the  common 
law  or  by  statute,  while  in  the  other  the  prohibition  rests  more  par- 
ticularly on  public  policy,  or,  as  it  is  sometimes  called,  the  "policy  of 
the  law."  It  is  not  always  easy  to  distinguish  between  the  two  classes, 
for  frequent  decisions  upon  certain  matters  of  public  policy  have  es- 
tablished such  definite  rules  regarding  them  that  they  are  in  effect 
rules  of  the  common  law.  Too  much  importance,  therefore,  must  not 
be  attached  to  any  classification  of  the  subject 


AGREEMENTS  IN  VIOLATION  OF  POSITIVE  IiAW. 

149.  Any  agreement  Tvbicb  involves  tbe  doing  of  an  act  'crhich  is  posi- 
tively forbidden  by  la-w,  or,  ivhat  amounts  to  the  same  thing, 
the  omission  to  do  an  act  -which  is  positively  enjoined  by  la\r, 
is  illegal  and  void.     Acts  may  be  so  prohibited  or  enjoined 

(a)  By  the  rules  of  the  common  laiv;    or 

(b)  By  statute. 

There  are  many  acts  which  the  law  positively  forbids  or  enjoins,  and 
to  the  doing  or  omission  of  which  some  penalty  is  attached.  Whether 
the  prohibition  or  injunction  is  by  the  common  law  or  by  statute  is 
altogether  immaterial.  The  act  or  omission  prohibited  may  be  some 
grievous  crime,  such  as  murder;  or  it  may  be  an  act  or  omission  pro- 
hibited merely  as  a  police  regulation,  as  in  the  case  of  statutes  regu- 
lating the  conduct  of  a  particular  trade  or  business,  with  only  a  small 
fine  as  the  penalty ;  or  again  it  may  be  only  a  civil  wrong.  All  of  these 
cases  stand  on  the  same  footing.  If  the  subject-matter  or  object  of 
an  agreement  is  such  that  its  performance  would  consist  in  an  act  or 

1  Pol.  Cont  (Sd  Ed.)  251. 


256  LEGALITY  OF  OBJECT.  (Ch.  8 

omission  so  forbidden,  or  be  so  connected  therewith  as  to  be  in  sub- 
stance part  of  the  sanie  transaction,  the  courts  will  not  enforce  it. 


SAME-BREACH  OF  RUI.ES  OF  COMMON  LAW. 

150.   Tlie  agreements  T^hicli  are  Illegal  because  tbey  are  in  breach,  of 
rules  of  tbe  common  laxv  are: 

(a)  Agreements  involving  the  commission  of  crime;    and 

(b)  Agreements  involving  the  commission  of  a  civil  vprong. 

This  classification,  like  that  in  the  preceding  section,  is,  from  the 
nature  of  the  subject,  only  approximate,  and  for  convenience  in  treat- 
ment. Many  acts  are  prohibited  by  statute  which  were  formerly  pro- 
hibited by  the  common  law,  and  many  acts  which  are  prohibited  by 
the  common  law  in  one  state  are  prohibited  by  statute  in  another,  and 
in  some  states  there  are  no  common-law  crimes  at  all.  For  this  reason, 
in  treating  of  agreements  in  breach  of  rules  of  the  common  law  we 
must  include  agreements  in  breach  of  statutes  which  are  merely 
declaratory  of  the  common  law. 

Agreements  Involving  the  Commission  of  Crime. 

The  simplest  instance  of  an  agreement  contrary  to  positive  law  Is 
an  agreement  to  commit  a  crime  or  indictable  ofiFense.  Every  agree- 
ment to  commit  a  crime  or  indictable  offense,  either  as  the  final  object 
or  as  a  means  to  an  object  which,  except  for  such  means,  would  be 
lawful,  is  illegal  and  void.  "If  one  bind  himself  in  an  obligation  to 
kill  a  man,  burn  a  house,  maintain  a  suit,  or  the  like,  it  is  void."  *  An 
agreement,  therefore,  to  write,  print,  or  publish  a  libelous  book  or 
article,'  or  an  obscene  book,  article,  or  picture,*  is  void.  And  so  it  is 
with  an  agreement  to  commit  an  assault."  Not  only  are  such  agree- 
ments illegal  and  void,  but  the  agreement  itself  is  a  crime  known  in 
the  criminal  law  as  a  "conspiracy."  The  crime  of  conspiracy  is  also 
committed  in  some  cases  where  it  is  agreed  to  commit  some  civil 
wrong ;  but  the  invalidity  of  such  an  agreement  does  not  need  to  rest 
on  its  criminal  character. 

Agreement  to  Commit  Civil  Wrong. 

An  agreement  will  generally  be  illegal  if  it  contemplates  a  civil 
wrong  to  a  third  person,  though  the  wrong  may  not  be  an  indictable 
offense,  and  though  the  agreement  may  not  amount  to  the  crime  of 
conspiracy.     An  agreement  to  divide  the  profits  of  a  fraudulent  scheme, 

•  Shep.  Touch.  370.  s  Post,  p.  259. 

*  Poplott  V.  Stoc'kdale,  1  Ryan  &  M.  337 ;   Gale  v.  Lecklo,  2  Starkle,  107. 
»  Allen  V.  Rescous,  2  Lev.  174. 


§  150)  AGREEMENTS   IN   VIOLATION   OP   POSITIVE    LAW.  257 

or  to  carry  out  some  object  in  itself  lawful,  by  means  of  a  trespass, 
breach  of  contract,  or  breach  of  trust,  is  unlawful  and  void.  The  acts 
contemplated,  though  not  necessarily  criminal,  are  contrary  to  positive 
law.® 

Same — Frauds  on  Creditors. 

Among  the  agreements  void  because  they  involve  a  civil  wrong  are 
agreements  in  fraud  of  creditors.  Thus,  in  case  of  compositions  with 
creditors,  if  in  order  to  procure  the  consent  of  some  particular  creditor, 
or  for  any  other  reason,  the  debtor  secretly  promises  him  some  ad- 
vantage over  the  others,  the  agreement  is  void.  In  a  composition  with 
creditors,  "each  creditor  consents  to  lose  part  of  his  debt  in  consid- 
eration that  the  others  do  the  same,  and  each  creditor  may  be  con- 
sidered to  stipulate  with  the  others  for  a  release  from  them  to  the 
debtor  in  consideration  of  the  release  by  him.  Where  any  creditor, 
in  fraud  of  the  agreement  to  accept  the  composition,  stipulates  for  a 
preference  to  himself,  his  stipulation  is  altogether  void;  not  only 
can  he  take  no  advantage  from  it,  but  he  is  also  to  lose  the  benefit  of 
the  composition."  ^  A  creditor  who  has  not  participated  in  the  fraud 
may  repudiate  the  composition  and  recover  on  the  original  claim.* 

0  SCOTT  V.  BROWN  [1892]  2  Q.  B.  724;  Begbie  v.  Sewage  Co.,  L.  R.  10  Q. 
B.  491;  Clement's  Appeal,  52  Conn.  464;  Allen  v.  Rescous,  2  Lev.  174;  Hatch 
V.  Mann,  15  Wend.  (N.  Y.)  44;  Davis  v.  Arledge,  3  Hill  (S.  C.)  170,  30  Am. 
Dec.  360;  McCall's  Adm'r  v.  Capehart.  20  Ala.  521;  Gleason  v.  Railroad  Co. 
(Iowa)  43  N.  W.  517 ;  WOODSTOCK  IRON  CO.  v.  EXTENSION  CO.,  129  U. 
S.  643,  9  Sup.  Ct.  402,  32  L.  Ed.  819;  Huckins  v.  Hunt,  138  Mass.  366;  Gray 
V.  McReynolds,  65  Iowa,  461,  21  N.  W.  777,  54  Am.  Rep.  16;  Bloss  v.  Bloomer, 
23  Barb.  (N.  Y.)  604 ;  Thomas  v.  Caulkett,  57  Mich.  392,  24  N.  W.  154,  58  Am. 
Rep.  369  ;  Smith  v.  Humphreys,  88  Me.  345,  34  Atl.  166 ;  note  209,  Infra.  Where 
A.  pays  B.  for  goods  for  C,  intending  that  C.  shall  not  have  to  pay  anything, 
and  B.  and  C.  secretly  agree  for  a  further  payment  by  C,  the  agreement  is 
void  as  a  fraud  on  A.  Jackson  v.  Duchaire,  3  Term  R.  551.  Perpetration  of 
fraud  on  the  public.  MATERNE  v.  HORWITZ,  101  N.  Y.  469.  5  N.  E.  331; 
Jerome  v.  Bigelow,  66  111.  452,  16  Am.  Rep.  597.  Contract  for  use  of  name  of 
musical  director  for  band  with  wtiich  he  is  not  connected.  Blakely  v.  Sousa. 
197  ra.  305,  47  Atl.  286.  See,  also,  Messer  v.  The  Fadettes,  168  Mass.  140, 
46  N.  E.  407,  37  L.  R.  A.  721,  60  Am.  St.  Rep.  371. 

7  Mullalieu  v.  Hodgson,  16  Q.  B.  689;  FROST  v.  GAGE,  3  Allen  (Mass.) 
560;  Partridge  v.  Messer,  14  Gray  (Mass.)  180;  Ramsdell  v.  Edgarton,  8 
Mete.  (Mass.)  227,  41  Am.  Dec.  503 ;  Clarke  v.  White,  12  Pet.  178,  9  L.  Ed.  1046 
KULLMAN  V.  GREENEBAU:M,  92  Cal.  403,  28  Pac.  674,  27  Am.  St.  Rep.  150 
Cobleigh  v.  Pierce,  32  Vt.  788;  O'Shea  v.  Oil  Co.,  42  Mo.  397,  97  Am.  Dec.  332 
Way  V.  Langley,  15  Ohio  St.  392;  Frieberg  v.  Treitschke.  36  Neb.  880,  55  N. 
W.  273;  Hefter  v.  Cahn,  73  111.  296;  Huckins  v.  Hunt,  138  Mass.  366;  Brown 
V.  Neally,  161  Mass.  1,  36  N.  E.  464;  Powers  Dry  Goods  Co.  v.  Harlin,  68 
Minn.  193,  71  N.  W.  16,  64  Am.  St.  Rep.  460 ;    Merritt  v.  Bucknam,  90  Me.  146, 

8  Zell  Guano  Co.  v.  Emry,  113  N.  C.  85.  18  S.  E.  89;  KULLMAN  v.  GREBNE- 
BAUM,  92  Cal.  403,  28  Pac.  674,  27  Am.  St.  Rep.  150;  Powers  Dry  Goods 
Co.  V.  Harlin,  68  Minn.  193,  71  N.  W.  16,  64  Am.  St.  Rep.  460. 

Clark  Cont.  (2d  Ed.)— 17 


258  LEGALITY   OF   OBJECT.  (Oil.  8 

Same — Fraud  in  Connection  with  Sales  at  Auction. 

Where  property  is  put  up  for  sale  at  public  auction,  any  agreement 
between  the  auctioneer  or  person  having  control  of  the  sale  and  third 
persons  by  which  fictitious  bids  are  to  be  made,  so  as  to  raise  the  price, 
is  a  fraud  on  the  purchaser,®  and  no  rights  can  be  based  upon  it.  A 
person,  for  instance,  engaged  to  make  fictitious  bids,  could  not  recover 
compensation  promised  him.  We  are  here  speaking  of  illegal  agree- 
ments only,  and  therefore  have  nothing  to  do  with  the  rights  of  the 
purchaser  at  an  auction  sale.  His  contract  is  not  illegal.  He  can 
avoid  it,^"  but  this  is  because  of  the  fraud,  not  because  of  any  ille- 
gality. The  illegality  is  in  the  agreement  to  commit  the  fraud.  The 
sale  is  not  illegal,  but  merely  voidable  at  the  purchaser's  option. 

In  like  manner  agreements  between  persons  for  the  purpose  of  deter- 
ring bidders  and  preventing  competition  at  an  auction  sale  are  illegal 
as  being  a  fraud  on  the  owner,  and  the  parties  to  such  an  agreement 
can  claim  no  rights  under  it.^^  This  rule,  however,  does  not  prevent 
parties  from  entering  into  a  bona  fide  arrangement  to  purchase  prop- 
erty at  auction  on  their  joint  account,  or  for  other  proper  purposes.^' 

37  Atl.  885.  It  has  been  held,  however,  in  New  York,  that  the  secret  agree- 
ment only  Is  void,  and  that  the  preferred  creditor  may  still  have  the  benefit 
of  the  composition  agreement.  HANOVER  NAT.  BANK  v.  BLAKE.  142  N. 
Y.  406,  37  N.  E.  519,  27  L.  R.  A.  33,  40  Am.  St.  Rep.  607.  See,  also,  White  v. 
Kuntz,  107  N.  Y.  518,  14  N.  E.  423,  1  Am.  St  Rep.  886 ;  Cheveront  v.  Textor. 
53  Md.  295.  A  secret  agreement  by  a  creditor  to  withdraw  his  opposition  to 
a  bankrupt's  discharge,  or  to  a  composition,  is  void;  and  it  does  not  matter 
whether  it  was  made  with  the  debtor  or  with  a  stranger,  Higgins  v.  Pitt,  4 
E.x.  312;  KULKVIAN  v.  GREENEBAUM,  supra;  nor  whether  the  consider- 
ation for  such  withdrawal  is  to  come  out  of  tlie  debtor's  assets  or  not,  Hall 
V.  Dyson,  17  Q.  B.  785;  KULLMAN  v.  GREENEBAUM,  supra;  and  this  is 
true  though  it  be  part  of  the  agreement  not  to  prove  against  the  estate  at 
all,  McKewan  v.  Sanderson,  20  Eq.  65. 

9  Smith  V.  Greenlee,  13  N.  C.  126.  18  Am.  Dec.  5(>4;  Moncrieff  v.  Golds- 
borough,  4  Har.  &  McH.  (Md.)  281,  1  Am.  Dec.  407;  Curtis  v.  Aspinwall,  114 
Mass.  187;  Peck  v.  List,  23  W.  Va.  338,  48  Am.  Rep.  398;  Pennock's  Appeal, 
14  Pa.  446,  53  Am.  Dec.  561;   Staines  v.  Shore,  16  Pa.  200,  55  Am.  Dec.  492. 

10  Otherwise  if  the  bidder,  though  employed  by  one  interested  in  the  sale, 
can  be  compelled  by  the  auctioneer  to  take  the  property.  McMillan  v.  Har- 
ris, 110  Ga.  72,  35  S.  E.  334,  48  L.  R.  A.  345,  78  Am.  St.  Rep.  93. 

11  GIBBS  V.  SMITH,  115  Mass.  592;  Ray  v.  Mackin,  100  111.  246;  Doolin 
V.  Ward,  6  Johns.  (N.  Y.)  194;  Atcheson  v.  Mallon,  43  N.  Y.  147,  3  Am.  Rep. 
678;  Barton  v.  Benson,  126  Pa.  431,  17  Atl.  642,  12  Am.  St.  Rep.  883;  Gardiner 
V.  Morse,  25  Me.  140;  Goldman  v.  Oppenheim,  118  Ind.  95,  20  N.  E.  635; 
Wooten  V.  Hinkle,  20  Mo.  290;  Atlas  Nat  Bank  v.  Holm,  71  Fed.  489,  19  C. 
C.  A.  94 ;  De  Baun  v.  Brand,  60  N.  J.  Law,  283,  37  Atl.  726 ;  Hallam  v.  Huff- 
man, 5  Kan.  App.  303,  48  Pac.  602;  McClelland  v.  Bank,  60  Neb.  90,  82  N. 
W.  319. 

12  GIBBS  v.  SMITH,  115  Mass.  .592;  Smith  v.  Ulman.  58  Md.  183.  42  Am. 
Rep.  329;  I'hippen  v.  Stickuey,  3  Mete.  (Mass.)  388:  Garrett  v.  Moss,  20  111. 
549;    Marie  v.  Garrison,  83  N.  Y.  14;    Smull  v.  Jones,  1  Watts  &  S.   (Pa.) 


§  151)  AGREEMENTS   IN    VIOLATION    OF    rOSlTIVE   LAW.  259 

Same — Publication  of  Libel. 

Since  it  is  a  civil  wrong  to  publish  a  libelous  book  or  article,  even 
when  it  does  not  constitute  a  crime,  an  agreement  contemplating  such 
a  publication  is  illegal.  No  action  will  lie,  therefore,  to  recover  com- 
pensation for  printing  or  publishing  a  libelous  book,  or  for  breach  of 
a  contract  to  print  or  publish  it,  or  on  an  agreement  to  indemnify 
against  liability  for  publishing  it.^'  In  order  to  render  such  a  con- 
tract illegal,  "it  should  appear  that  there  was  an  intention  on  the  part 
of  the  author  and  publisher  to  write  and  publish  libelous  matter ;  or 
that  the  author  proposed,  with  the  knowledge  and  acquiescence  of  the 
publisher,  to  write  libelous  matter;  or  that  the  contract  on  its  face 
provided  for  or  promoted  an  illegal  act."  ^* 

Same — Illegality  Distinguished  from  Fraud. 

Fraud  is  a  civil  wrong,  and  an  agreement  to  commit  a  fraud  is  an 
agreement  to  do  an  illegal  act ;  but  fraud  as  a  civil  wrong  must  be  kept 
apart  from  fraud  as  a  vitiating  element  in  contract.  Fraud  may 
vitiate  a  contract  because  it  prevents  the  consent  of  the  other  from 
being  genuine;  and  in  such  case  the  contract  can  be  avoided  by  the 
party  defrauded,  because  his  consent  was  unreal. 


SAME— AGREEMENTS    IN    BREACH    OF    STATUTE— CONSTITU- 
TIONAL LAW. 

151.    The  legislature,  in  the  exercise  of  its  police  power,  may  regulate 
or  prohibit  the  making  of  contracts. 

The  United  States,  or  a  state,  in  the  exercise  of  its  police  power, 
may  regulate  or  prohibit  the  making  of  contracts  where,  in  the  judg- 
ment of  the  legislature,  the  public  good  requires  the  restriction,  and 
ordinarily  the  courts  will  not  review  its  judgment  as  to  the  propriety 
of  the  law.  There  is,  however,  some  limitation  to  the  police  power. 
The  federal  constitution  protects  the  vested  rights  of  the  people,  and 
prohibits  congress  and  the  state  legislatures  from  passing  any  law 
which  shall  deprive  a  citizen  of  his  liberty  or  property  without  due 
process  of  law.     The  courts  are  bound  to  enforce  the  constitution  even 

128;  Id.,  6  Watts  &  S.  (Pa.)  122;  Jenkins  v.  Frink,  30  Cal.  586,  89  Am.  Dec. 
134;  Kearney  v.  Taylor,  15  How.  494,  14  L.  Ed.  787;  Wicker  v.  Hoppock,  6 
Wall.  94,  18  L.  Ed.  752;  Barnes  v.  Morrison,  97  Va.  372,  34  S.  E.  93;  Fi- 
delity Ins.  &  Safe-Deposit  Co.  v.  Railway  Co.  (C.  O.)  98  Fed.  475  (agreement 
by  bondholders  to  purchase  on  foreclosure). 

13  Shackell  v.  Rosier,  2  Bing.  N.  C.  634;  Atkins  v.  Johnson,  43  Vt.  78,  5 
Am.  Rep.  260;  Arnold  v.  Clifford,  2  Sumn.  238,  Fed.  Cas.  No.  555;  Ives  y. 
Tones,  25  N.  C.  538,  40  Am.  Dec.  421;   Clay  v.  Yates,  1  Hurl.  &  N.  78. 

14  JEWETT  PUB.  CO.  v.  BUTLER,  159  Mass.  517,  34  N.  E.  10S7. 


260  LEGALITY   OF  OBJECT.  (Oil.  8 

as  against  the  legislatures;  and  if  the  legislature,  assuming  to  act 
under  the  police  power  of  the  state,  should  pass  a  statute  depriving  a 
person  of  the  right  to  make  contracts,  where  the  public  good  clearly 
does  not  require  such  interference,  the  statute  would  be  unconstitu- 
tional and  void.^"  A  discussion  of  the  police  power  and  of  its  limi- 
tations, however,  in  its  bearings  upon  the  power  of  the  legislature  in 
this  regard,  is  beyond  the  scope  of  this  book. 


SAME— PROHIBITION  BY  STATUTE. 

152.  In  determining  xrhetlier  a  contract,  or  an  act  or  omission  involved 
in  tlie  performance  of  a  contract,  is  proMbited  by  statute,  the 
intention  of  a  legislature  must  be  ascertained,  and  must  govern; 
and  in  ascertaining  the  intention  tbe  court  xrill  look  to  tbe 
language  and  subject-matter  of  tbe  statute,  and  tbe  evil  'whicli 
it  seeks  to  prevent.  Subject  to  tMs  fundamental  rule,  the 
follo^v^ing  rules  of  construction,  ivhich  are  frequently  applied, 
may  be  stated: 

<a)  Where  the  statute  imposes  a  penalty  for  an  act  or  omission,  this 
is  prima  facie  evidence  of  intention  to  prohibit. 

(b)  If  the  object  of  the  penalty  is  protection  of  the  public,  it  amounts 
to  a  prohibition;  but  if  the  object  is  solely  for  revenue  pur- 
poses, the  act  or  omission  is  not  prohibited. 

Where  it  is  contended  that  an  agreement  is  illegal  as  being  in  viola- 
tion of  a  statute,  the  question  is  whether  the  acts  contemplated  are 
prohibited  by  the  statute ;  and  the  answer  to  this  question  depends 
upon  the  construction  of  the  statute.  In  all  cases  the  intention  of  the 
legislature  must  govern.^^  If  a  statute  was  intended  to  prohibit  a 
particular  agreement,  or  the  acts  involved  in  its  performance,  then 
that  agreement  is  clearly  illegal. 

The  law  does  not  make  any  distinction  between  acts  which  are  mala 
in^se,  and  which  for  this  reason  are  prohibited  by  statute,  and  acts 

15  Allgeyer  v.  Louisiana,  165  U.  S.  578,  17  Sup.  Ct.  437,  41  L.  Ed.  832;  Hol- 
den  V.  Hardy,  1G9  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed.  780;  People  v.  Coler, 
160  N.  Y.  1,  59  N.  E.  716,  52  L.  E.  A.  814,  82  Am.  St.  Rep.  605;  People  v.  Gill- 
son,  109  N.  Y.  389,  17  N.  E.  343,  4  Am.  St.  Rep.  465;  In  re  Jacobs,  98  N.  Y.  98, 
50  Am.  Rep.  636;  People  v.  Marx,  99  N.  Y.  377,  2  N.  E.  29,  52  Am.  Rep.  34; 
State  V.  Scougal,  3  S.  D.  55,  51  N.  W.  858,  15  L.  R.  A,  477,  44  Am.  St.  Rep. 
756;   Godcharles  v.  Wigeman,  113  Pa.  431,  6  Atl.  354. 

18  COPE  V.  ROWLANDS,  2  Mees.  &  W.  149;  Miller  v.  Ammon,  145  U.  S. 
421,  12  Sup.  Ct.  884,  36  L.  Ed.  759;  BOWDITCH  v.  INSURANCE  CO.,  141 
Mass.  292,  4  N.  E.  798,  55  Am.  Rep.  474;  AIKEN  v.  BLAISDELL,  41  Vt.  655; 
Griffith  V.  Wolls,  3  Denio  (N.  Y.)  226;  Harris  v.  Runnels,  12  How.  79,  13  L. 
Ed.  901;  PANGBORN  v.  WESTLAKE,  36  Iowa,  546;  Dillon  v.  Allen,  46 
Iowa,  299,  26  Am.  Rep.  145;  Lester  v.  Bank,  33  Md.  558,  3  Am.  Rep.  211; 
Ruckman  v.  Bergholz,  37  N,  J.  Law,  437;  McKeever  v.  Beacom,  101  Iowa, 
173,  70  N.  W.  112. 


§  152)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW.  261 

which  are  mala  prohibita,  or  wrong  merely  because  they  are  prohibited 
by  statute.  If  the  statute  prohibits  an  act,  an  agreement  involving 
its  commission  is  illegal,  without  regard  to  the  ground  of  prohibition, 
or  the  morality  or  immorality  of  the  act." 

Prohibition — Effect  of  Penalty. 

A  statute  may  render  an  agreement  illegal  by  express  ^prohibition  or 
bv^imposing  a  penalty  without  an  express  prohibition. 

Some  cases  hold  that,  whenever  a  statute  imposes  a  penalty  for  an 
act  or  omission,  it  impliedly  prohibits  it ;  ^®  but,  according  to  the  weight 
of  authority,  the  imposition  of  a  penalty  is  only  prima  facie  evidence 
of  an  intention  to  prohibit,^'  The  intention  of  the  legislature  will 
always  govern,  and  the  court  will  look  to  the  language  and  subject- 
matter  of  the  act  and  to  the  evil  which  it  seeks  to  prevent.  A  con- 
sideration which  receives  weight  is  whether  the  object  of  the  penalty 
is  protection  to  the  public  and  not  merely  revenue;  for  if  the  penalty 
is  designed  to  further  the  interests  of  public  policy,  as  to  protect  the 
public  against  fraud  or  imposition,  or  to  protect  health  or  morals, 
safety  or  good  order,  it  amounts  to  a  prohibition;  ^^  hut  if  it  is-de- 
signed  solely  for  revenue  purposes,  a  contract  in  violation  of  the  statute 
ij^  not  necessarily  prohibited.^ ^  The  propriety  of  applying  a  different 
rule  to  statutes  designed  for  revenue  purposes,  however,  has  been  ques- 

iT  Bank  of  U.  S.  v.  Owens,  2  Pet.  527,  539,  7  L.  Ed.  508;  Bensley  v.  Big- 
nold.  5  Barn.  &  Aid.  335;  A^abert  v.  Maze,  2  Bos.  &  P.  371;  White  v.  Buss,  3 
Cush.  (Mass.)  448;  Puckett  v.  Alexander,  102  N.  C.  95,  8  S.  E.  7G7,  3  L.  R.  A. 
43 ;  Penn  v,  Bornman,  102  111.  523 ;  Lewis  v.  Welcli,  14  N.  H.  294 ;  William 
^Yilcox  Mfg.  Co.  V.  Brazos,  74  Conn.  208,  50  Atl.  722. 

18  Miller  v.  Post,  1  Allen  fMass.)  434;  Hallett  v.  Novion,  14  Johns.  (N.  Y.) 
273,  290;  Pray  v.  Burbauk,  10  N.  H.  377;  Doe  v.  Burnham,  31  N.  H.  420; 
Durgin  v.  Dyer,  68  Me.  143;  Kleckley  v.  Leyden.  63  Ga.  215;  McConnell  v. 
Kitchens,  20  S.  C.  430,  47  Am.  Rep.  845;  Bacon  v.  Lee,  4  Iowa,  490;  Randall 
V.  Tuell,  89  Me.  443,  36  Atl.  910,  38  L.  R.  A.  143;  Sandage  v.  Manufacturing 
Co.,  142  Ind.  148,  41  N.  E.  380,  34  L.  R.  A.  363,  51  Am.  St  Rep.  165 ;  Edgerly 
V.  Hale,  71  N.  H.  138,  51  Atl.  679. 

18  Bensley  v.  Bignold,  5  Bam.  &  Aid.  335;  COPE  v.  ROWLANDS,  2  Mees. 
&  W.  149;  Griffith  v.  Wells,  3  Denio  (N.  Y.)  226;  Hunt  v.  Knickerbacker,  5 
Johns.  (N.  Y.)  327;  President,  etc.,  of  Springfield  Bank  v.  Merrick,  14  Mass. 
:?.22;  Siedenbender  v.  Charles'  Adm'rs,  4  Serg.  &  R.  (Pa.)  151,  8  Am,  Dec.  682; 
Penn  v.  Boraman,  102  111.  523,     See,  also,  cases  in  note  16,  supra. 

20  COPE  V.  ROWLANDS,  2  Mees.  &  W.  149;  Cundell  v.  Dawson,  4  C.  B. 
376;  Griffith  v.  Wells,  3  Denio,  226;  Seidenbeuder  v.  Charles'  Adm'rs,  4 
Serg.  &  R.  151,  8  Am.  Dec.  682;  Penn  v.  Bornman,  102  111.  523;  BISBEE  v. 
McALLEN,  39  Minn.  143,  39  N.  W.  299;  Smith  v.  Robertson  (Ky.)  50  S.  W. 
852,  45  L.  R.  A.  510. 

21  Brown  v.  Duncan,  10  Barn.  &  C.  93;  Lamed  v.  Andrews,  106  Mass.  435. 
8  Am.  Rep.  346;  Corning  v.  Abbott,  54  N.  H.  469;  AIKEN  v.  BLAISDELL, 
41  Vt.  655;  Ruckman  v.  Bergholz,  37  N.  J.  Law,  437;  Rahter  v.  First  Nat 
l^auk,  92  Pa.  393;  Mnndlebaum  v.  Gregovich,  17  Nev.  87,  28  Pac.  121;  Vermont 
Loan  &  Trust  Co.  v.  Hoffman  (Idaho)  49  Pac.  314,  37  L.  R.  A.  509. 


262  LEGALITY  OF  OBJECT.  (Cli.  8 

tioned.^'  Another  consideration,  which  sometimes  receives  weight, 
is  whether  the  penalty  is  recurrent  upon  every  breach  of  the  provisions 
of  the  statute;  for,  if  it  is  recurrent,  the  inference  is  that  the  penalty 
amounts  to  a  prohibition.^^ 

The  absence  of  a  penalty  or  the  failure  of  the  penal  clause  in  the 
particular  instance  will  not  prevent  the  court  from  giving  effect  to  an 
express  prohibition.^* 

Doing  Indirectly  What  cannot  be  Done  Directly. 

What  the  law  forbids  to  be  done  directly  cannot  be  made  lawful  by 
doing  it  indirectly.,^ ^  Where  a  bank,  for  instance,  which  was  itself 
prohibited  from  entering  into  a  particular  transaction,  procured  its 
manager  to  appear  in  the  transaction  for  its  benefit,  it  was  held  that 
the  transaction  was  unlawful,  "upon  the  principle  that  whatever  is 
prohibited  by  law  to  be  done  directly  cannot  legally  be  effected  by  an 
indirect  and  circuitous  contrivance."  ^®  So,  where  the  charter  of  a 
bank  forbade  the  taking  of  a  greater  rate  of  interest  than  6  per  cent., 
but  did  not  say  that  an  agreement  should  be  void  in  which  such  inter- 
est was  taken,  the  supreme  court  of  the  United  States  held  that  a  trans- 
action by  which  the  bank  discounted  a  note  at  more  than  6  per  cent. 
was  void,  though  the  charter  did  not  expressly  prohibit  an  "agreement" 
to  take  higher  interest,  but  spoke  only  of  "taking,"  not  of  "reserving," 
interest.  The  court  said:  "A,, .fraud  upon  a„  statute  is  a  violation 
of  the  statute.  *  *  *  j^  cannot  be  permitted  by  law  to  stipulate 
for  the  reservation  of  that  which  it  is  not  permitted  to  receive.  In 
those  instances  in  which  courts  are  called  upon  to  inflict  a  penalty 
*  *  *  it  is  necessarily  otherwise ;  for  then  the  actual  receipt  is 
generally  necessary  to  consummate  the  offense;  but,  when  the  re- 
strictive policy  of  a  law  alone  is  in  contemplation,  we  hold  it  to  be  an 
universal  rule  that  it  is  unlawful  to  contract  to  do  that  which  it  is  un- 
lawful to  do."  "  ^         ~  '  

Same — Agreements  Prohibited  but  Declared  not  Void. 

An  agreement  forbidden  by  statute  may  be  saved  from  being  void 
by  the  statute  itself.     Where  a  statute  forbids  an  agreement,  but  says 


22  See  COPE  v.  ROWLANDS,  2  Mees.  &  W.  149 ;  Territt  v.  Bartlett,  21  Vt. 
184:   AIKEN  V.  BI^ISDELL,  41  Vt.  G55. 

23  Ritchie  V.  Smith,  6  C.  B.  462;  Anson,  Cont  (8th  M.)  18.5. 

24  Fol.  Cont.  (3d  Ed.)  271;  Sussex  Peerage  Case,  11  Clark  &  F.  148,  149. 
See,  also,  Union  Nat  Bank  v.  Louisville,  N.  A.  &  C.  Ry.  Co.,  145  111.  208,  34 
N.  E.  135. 

2  r>  Booth  V.  Bank  of  England,  7  Clark  &  F.  509,   540;    Bank  of  U.  S.  v. 
Owens.  2  Pet.  527,  536,  7  L.  Ed.  508 ;  Wells  v.  People,  71  111.  532. 
20  Booth  V.  Bank  of  England,  snpra. 
27  Bank  of  U.  S.  v.  Owens,  2  Pet  527,  7  L.  Ed.  508. 


§  153)  AGREEMENTS   IN    VIOLATION   OF   POSITIVE   LAW.  2G3 

that,  if  made,  it  shall  not  be  void,  then,  if  made,  it  is  a  contract  which 
the  courts  must  enforce.** 

Same — Agreements  Simply  Void  and  Unenforceable. 

Where  no  penalty  is  imposed,  and  the  intention  of  the  legislature 
appears  to  be  simply  that  the  agreement  is  not  to  be  enforced,  neither 
the  agreement  itself  nor  its  performance  is  to  be  treated  as  unlawful 
for  any  other  purpose.^' 


SAIVLE— PARTICULAR    AGREEMENTS    IN    BREACH    OF    STATUTE. 

153.   ATiiong  the   statutes  proliibiting  agreements,  tlie  folloMping  may 
be  mentioned  as  the  most  important: 

(a)  Statutes  regrulatiug  the  conduct  of  a  particular  trade,  business, 

or  profession,  or  regulating  dealings  in  particular  articles  of 
commerce. 

(b)  Statutes  regulating  the  traffic  in  intoxicating  liquors. 

(c)  Statutes  prohibiting  labor,  business,   etc.,  on  Sunday. 

(d)  Statutes  prohibiting  the  taking  of  usuiry. 

(e)  Statutes    prohibiting    gaming    and   xcagers.      This    head    includes 

statutes  prohibiting  the  buying  and  selling  of  stocks  or  com- 
modities for  future  delivery,  vrhere  the  parties  intend,  not  an 
actual  delivery,  but  a  settlement  by  paying  the  difference  be- 
t^ireen  the  market  and  the  contract  price. so  / 

(f)  Statutes  prohibiting  lotteries.  Li.,^-*'^'^     \ 

Regulating  Trade,  Profession,  or  Business.        qJM^  r<-'*>»'*T^ 

There  are  numerous  statutes  in  all  of  the  states,  enacted  for  the 
purpose  of  protecting  the  public  in  dealing  with  certain  classes  of 
traders  or  professional  men,  and  with  certain  articles  of  commerce. 
Protection  to  the  public  is  generally  the  object  of  these  statutes,  and 
they  are  construed  as  prohibiting  contracts  entered  into  without  having 
complied  with  the  prescribed  conditions.  As  falling  within  this  class 
may  be  mentioned  statutes  imposing  a  penalty  on  dealers  who  fail  to 
have  the  weights,  measures,  or  scales  used  by  them  approved  and 
sealed  by  the  proper  ofificer.  Such  a  statute  is  for  the  protection  of  the 
pubHc  against  fraud  and  imposition,  and  amounts  to  a  prohibition  of 
sales  in  measures  or  by  weights  or  scales  not  sealed,  so  that  a  dealer 
who  has  made  such  a  sale  cannot  recover  the  price.*^  '    tjf 

28  Lewis  V.  Bright,  4  El.  &  Bl.  917.      ^  ^''-^^■^'^--i^^J^isr^ 

2  8  Post.  p.  332. 

80  Independently  of  statute,  wagers  on  siibjects  In  which  the  parties  have 
no  interest  are,  in  this  coimtry,  generally  held  illegal,  as  being  contrary  to 
public  policy.    Post,  p.  276. 

31  Miller  v.  Post,  1  Allen  (INIass.)  434;  BISBEE  v.  McALDEN,  39  Minn. 
143,  39  N.  W.  299;  Finch  v.  Barclay,  S7  Ga.  393,  13  S.  E.  566;  Eaton  v.  K^^s^, 
114  aiass.  433. 


204  LEGALITY   OF  OBJECT.  (Ch.  8 

Falling  within  this  class  are  also  statutes  requiring  professional  men, 
such  as  lawyers,  physicians  and  surgeons,  and  others,  to  procure  a 
license,  certificate,  or  diploma  as  a  condition  precedent  to  the  right 
to  engage  in  the  practice  of  their  profession.  These  statutes  are  in- 
tended to  protect  the  public  against  incompetent  and  unqualified  prac- 
titioners, and  a  person  coming  within  the  statute  cannot  recover  for 
his  services  if  he  has  not  complied  with  its  provisions.^* 

There  are  also,  in  most  of  the  states,  statutes  regulating  dealings 
with  certain  articles  of  commerce.  They  are  designed  either  for  the 
protection  of  the  public  against  fraud  or  imposition  from  the  sale  of 
a  spurious  article,  or  for  the  protection  of  the  public  health  against 
adulterated  articles  of  food,  or  dangerous  substances,  such  as  powder 
and  poisons.^*  Sales  of  fertilizers,  for  instance,  have  been  held  illegal 
where  the  article  was  not  inspected  or  labeled  as  required  by  statute.^* 

In  many  of  the  states  there  are  statutes  prohibiting  the  employment 
of  young  children  in  factories,  and  a  contract  for  such  employment 
would  be  illegal,  so  that  a  father  could  not  recover  for  the  services  of 
a  child  so  employed.^" 

82  Lawyers.  Hall  v.  Bishop,  3  Daly  (N.  Y.)  109;  Ames  v.  Gilman,  10  Mete. 
(Mass.)  239;  Hittson  v.  Brown,  3  Colo.  304.  But  see  Yates  v.  Robertson,  80 
Va.  475;  Harland  v.  Lilienthal,  53  N.  Y.  438.  Physicians  and  surgeons. 
Bailey  v.  Mogg,  4  Denio  (N.  Y.)  60;  Alcott  v.  Barber,  1  Wend.  (N.  Y.)  526; 
Orr  V.  Meek,  111  Ind.  40,  11  N.  E.  787;  Coyle  v.  Campbell,  10  Ga.  570;  Puck- 
ett  T.  Alexander,  102  N.  C.  95,  8  S.  E.  767,  3  L.  R.  A.  43;  Davidson  v.  Bohl- 
man,  37  Mo.  App.  576;  Richardson  v.  Dorman,  28  Ala.  679;  Jordan  v.  Dayton, 
4  Ohio,  295;  Underwood  v.  Scott,  43  Kan.  714,  23  Pac.  942;  Holmes  v.  Halde, 
74  Me.  28,  43  Am.  Rep.  567;  Dow  v.  Haley,  30  N.  J.  Law,  354;  Adams  v. 
Stewart,  5  Har.  (Del.)  144;  Haworth  v.  Montgomery,  91  Tenn.  16,  18  S.  W. 
399;  Hargan  v.  Pm-dy,  93  Ky.  424,  20  S.  W.  432;  Roberts  v.  Levy  (Cal.)  31 
Pac.  570.  Unlicensed  real-estate  broker.  Buckley  v.  Humason,  50  Minn. 
195,  52  N.  W.  385,  16  L.  R.  A.  423,  36  Am.  St.  Rep,  637;  Johnson  v.  Hulings, 
103  Pa.  498,  49  Am.  Rep.  131;  Stevenson  v.  Ewing,  87  Tenn.  46,  9  S.  W.  230. 
Unlicensed  stockbroker.  COPE  v.  ROWLANDS,  2  Mees.  &  W.  149;  Hustis 
V.  Pickards,  27  111.  App.  270.  School  teacher  without  certificate.  Ryan  v. 
School  Dist,  27  Minn.  433,  8  N.  W.  146;  Wells  v.  People,  71  111.  532.  Unquali- 
fied conveyancer.  Taylor  v.  Gas  Co.,  10  Exch.  293.  Unlicensed  plumber. 
Johnston  v.  Dahlgren,  31  App.  Div.  204,  52  N.  Y.  Supp.  555.  Innkeeper.  Ran- 
dall v.  Tuell,  89  Me.  443,  36  Ati.  910,  38  L.  R.  A.  143.  Keeper  of  stallion. 
Smith  V.  Robertson,  106  Ky.  472,  50  S.  W.  852 ;  Nelson  v.  Beck,  89  Me.  264, 
36  Atl.  374. 

33  Sale  of  oleomargarine.  Waterbury  v.  Egan  (City  Ct.  N.  Y.)  3  Misc.  Rep. 
355,  23  N.  Y.  Supp.  115;  Braun  v.  Keally,  146  Pa.  519,  23  Atl.  389,  28  Am.  St. 
Rep.  811. 

8  4  McConnell  v.  Kitchens,  20  S.  C.  430,  47  Am.  Rep.  845;  Conley  v.  Sims,  71 
Ga.  161;  Johnston  v.  McConnell,  65  Ga.  129;  Baker  v.  Burton  (C.  C.)  31  Fed. 
401;  Williams  v.  Barfield,  Id.  398;  Campbell  v.  Segars,  81  Ala.  259,  1  South. 
714.    Contra,  NIemeyer  v.  Wright.  75  Va.  239,  40  Am.  Rep.  720. 

3  0  Birkett  v.  Chatterton,  13  R.  I.  299,  43  Am.  Rep.  30.  Under  eight-hour 
law,  making  violation  of  act  a  misdemeanor,  an  employe  cannot  recover  for 
overtime.    Short  v.  Mining  Co.,  20  Utah,  20,  57  Pac.  720,  45  L.  R.  A.  603. 


§  153}  AGREEMENTS   IN   VIOLATION    OF   POSITIVE   LAW.  265 

Further  illustrations  of  statutes  within  this  class  are  referred  to 
below. ^" 

Safue — Traffic  in  Intoxicating  LiquorsV 

Where  a  statute  in  terms  prohibits  the  sale  of  intoxicating  liquors, 
a  contract  of  sale  is  of  course  invalid.  Some  difficulty  has  arisen 
where  the  statute  was  not  absolutely  prohibitory,  but  merely  prescribed 
certain  conditions  to  be  complied  with  by  dealers.  An  example  is 
where  a  statute  imposes  a  penalty  for  selling  without  a  license.  It  is 
generally  held  that  such  a  statute  is  not  merely  for  purposes  of  revenue, 
but  is  to  diminish  the  evils  of  intemperance,  and  prevent  disreputable 
and  objectionable  persons  from  engaging  in  the  business,  and  that 
sales  without  a  license  are  prohibited  and  rendered  illegal.  "• 

Somewhat  in  line  with  these  statutes  are  those  which  regulate  the 
conduct  of  saloons,  such  as  statutes  prohibiting  billiard  tables,  bowling 
alleys,  etc.,  in  connection  with  a  saloon.  An  agreement  in  breach  of 
such  a  statute  is  illegal.  A  carpenter,  for  instance,  cannot  recover  the 
price  of  erecting  a  bowling  alley  in  ia  building  appurtenant  to  a  tavern, 
where  a  statute  prohibits  it  from  being  so  kept.^® 

So,  also,  under  a  statute  imposing  a  penalty  on  any  person  owning 
or  controlling  any  premises  who  shall  suffer  them  to  be  used  for  the 
sale  of  spirituous  liquors,  a  person  who  owns  a  building,  and  has 
knowledge  that  his  tenant  at  will  is  using  the  premises  for  the  sale  of 
spirituous  liquors,  and  who  permits  him  to  continue  in  possession, 
cannot  recover  for  use  and  occupation.*** 

Contracts  in  Breach  of  Sunday  Laws. 

The  common  law  does  not  prohibit  the  making  of  contracts  on  Sun- 
day, and,  in  the  absence  of  statutory  prohibition,  such  contracts  are 

88  Loan  by  pawnbroker  who  has  neglected  to  comply  with  statute.  Fer- 
gusson  V.  Norman,  5  Bing.  N.  C.  76.  Failure  of  printer  to  print  his  namo  on 
the  work  as  required  by  statute.  Bensley  v.  Bignold,  5  Barn.  &  Aid.  335. 
Unlicensed  peddlers.  Stewartson  v.  Lothrop,  12  Gray  (Mass.)  52.  Agreement 
to  construct  building  not  complying  with  building  regulations.  Stevens  v. 
Gourley,  7  C.  B.  (N.  S.)  99;  Burger  v.  Roelsch,  77  Hun,  44,  28  N.  Y.  Supp.  4G0. 
Failure  to  measure  wood  sold,  as  required  by  statute.  Pray  v.  Burba  uk,  10 
N.  H.  877.  Agreement  for  threshing  grain,  where  machine  is  not  boxed  as 
required  by  a  statute,  intended  to  prevent  Injury  to  workmen.  Dillon  v. 
Allen,  46  Iowa,  299,  26  Am.  Rep.  145.  Sale  of  shingles  not  of  size  prescribed. 
Wheeler  v.  Russell,  17  Mass.  258. 

8  7  On  this  subject,  see  Black,  Intox.  I>lq.  §§  242-276. 

88  Griffith  V.  Wells,  3  Denio  (N.  Y.)  226;  Territt  v.  Bartlett,  21  Vt.  184; 
AIKEN  v.  BLAISDELL,  41  Vt.  655;  O'Bryan  v.  Fitzpatrick,  48  Ark.  487.  3 
S.  W.  527;  Vannoy  v.  Patton,  5  B.  Mon.  (Ky.)  248;  Solomon  v.  Dreschler,  4 
Minn.  278  (Gil.  197);  Lewis  v.  Welch,  14  N.  H.  294;  Cobb  v.  Billings.  23  Me. 
470;  Melchoir  v.  McCarty,  31  Wis.  252,  11  Am.  Rep.  605;  Bach  v.  Smith,  2 
Wash.  T.  145,  3  Pac.  831. 

89  Spurgeon  v.  McEhvain,  6  Ohio,  442,  27  Am.  Dec.  26G. 
*o  Mitchell  v.  Scott,  62  N.  H.  596.    Post,  p.  82a 


26G  LEGALITY   OF  OBJECT.  (Ch.  8 

as  valid  as  if  made  on  any  other  day.*^  In  most  states,  however,  stat- 
utes have  been  enacted  on  the  subject.*^ 

Where  the  statute  expressly  prohibits  the  making  of  contracts  on 
Sunday,  and  declares  that  they  shall  be  void,  there  should  be  no 
difficulty  in  applying  it;  *^  and,  if  a  statute  prohibits  servile  v^ork  and 
labor  on  Sunday,  there  can  of  course  be  no  recovery  for  such  work.** 

Where  it  is  provided  that  no  person  shall  do  any  labor,  work,  or 
business  on  Sunday,  all  secular  business  is  prohibited.  Not  only 
would  a  contract  to  do  work  on  Sunday,  made  on  some  other  day,  be 
illegal  because  of  the  object,  but  a  contract  made  on  Sunday  to  work  on 
another  day  would  be  likewise  prohibited.  The  making  of  a  contract 
is  secular  business,  within  the  meaning  of  the  statute.  *^  But  where 
the  prohibition  is  only  against  servile  work  and  labor,  the  making  of 
contracts,  including  the  execution  of  commercial  paper,  is  not  gen- 
erally regarded  as  included.*"     Again,  if  the  prohibition  is  confined  to 

41  Story  V.  Elliott,  8  Cow.  (N.  Y.)  27,  18  Am.  Dec.  423;  Sayles  v.  Smith, 
12  Wend.  (N.  Y.)  57,  27  Am.  Dec.  117;  Richmond  v.  Moore,  107  111.  429,  47 
Am.  Rep.  445;  Bloom  v.  Richards,  2  Ohio  St.  387;  Swann  v.  Swann  (C.  C.)  21 
Fed.  299;  Adams  v.  Gay,  19  Vt  358;  Brown  v.  Browning,  15  R.  I.  422,  7 
Atl.  403,  2  Am.  St.  Rep.  90S. 

4  2  Sunday  laws  are  not  an  unconstitutional  interference  with  the  religious 
liberty  of  the  people.  State  v.  O'Rourk,  .35  Neb.  614,  53  N.  W.  591,  17  L.  R.  A. 
830;  State  v.  Judge,  39  La.  Ann.  132,  1  South.  437;  Scales  v.  State,  47  Ai'k. 
476,  1  S.  W.  769,  58  Am.  Rep.  768;  Petit  v.  Minnesota,  177  U.  S.  164,  20  Sup. 
Ct.  660.  44  L.  Ed.  716 ;  Heunington  v.  State,  163  U.  S.  299,  16  Sup.  Ct  1086,  41 
L.  Ed.  166 ;   State  v.  Powell.  58  Ohio  St.  324.  i'>0  N.  E.  900.  41  L.  R.  A.  854. 

4  3  Burns  v.  Moore,  76  Ala.  339,  52  Am.  Rep.  332.  In  Maine,  and  probably  in 
some  of  the  other  states,  the  statute  provides  that  the  defense  that  a  con- 
tract was  executed  on  Sunday  cannot  be  made  to  an  action  thereon  unless 
the  consideration  is  returned.  Wentworth  v.  Woodside,  79  ISIe.  156,  8  Atl. 
763:  First  Nat  Bank  v.  Kingsley,  84  Me.  Ill,  24  Atl.  794;  Wheelden  v.  Ly- 
ford,  84  Me.  114,  24  Atl.  793. 

44  Watts  V.  Van  Ness,  1  Hill  (N.  Y.)  76. 

4  5  Northrup  v.  Foot,  14  Wend.  (N.  Y.)  248;  Pattee  v.  Greely,  13  Mete.  (IVIass.) 
284;  Towle  v.  Larrabee,  26  Me.  464;  Lyon  v.  Strong,  6  Vt.  219;  Varney  v. 
French,  19  N.  H.  233;  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252;  Id., 
25  Atl.  474;  Calhoun  v.  Phillips,  87  Ga.  482,  13  S.  E.  593;  Goss  v.  Whitney, 
27  Vt.  272;  Kepner  v.  Keefer,  6  Watts  (Pa.)  231,  31  Am.  Dec.  460;  Smith  v. 
Railway  Co.,  83  Wis.  271,  50  N.  W.  497:  Brazee  v.  Bryant,  50  Mich.  136,  15 
N.  W.  49;  Durant  v.  Rhener,  26  Minn.  362,  4  N.  W.  610.  A  notice  to  a  tenant. 
Cannon  v.  Ryan,  49  N.  J.  Law,  314,  8  Atl.  293.  Indorsement  of  note.  First 
Nat.  Bank  v.  Kingsley,  84  Me.  Ill,  24  Atl.  794.  Selling  of  soda  water  by  a 
druggist  is  "worldly  employment."  Splane  v.  Commonwealth  (Pa.  Sup.)  12 
Atl.  431.  Extension  of  time  of  payment  of  debt.  Rush  v.  Rush  (N.  J.  Ch.)  18 
Atl.  221.  Casual  execution  of  note  is  not  "labor."  Hoklen  v.  O'Brien,  86 
Minn.  297,  90  N.  W.  531. 

4  6  Birks  V.  French,  21  Kan.  238;  Richmond  v.  Moore,  107  111.  429.  47  Am. 
Rep.  445;  Boynton  v.  Page,  13  Wend.  (N.  Y.)  425.  Contra,  REYNOLDS  v. 
STEVENSON.  4  Ind.  619;  Link  v.  Clemmens,  7  Blackf.  (Ind.)  479.  Sale  of 
tickets  by  manager  of  theater,  and  superintending  Sunday  performance,  is 


§  153)  AGIIEEMENTS   IN   VIOLATION    OF    POSITIVE    LAW.  267 

labor,  business,  or  work  of  a  man's  "ordinary  calling,"  contracts  or 
other  business  or  work  on  Sunday  by  a  person  is  not  illegal  unless  it  is 
within  his  ordinary  calling.''''  A  real-estate  broker  or  lawyer,  there- 
fore, would  not  violate  the  statute  by  purchasing  or  selling  a  horse 
on  Sunday.  If  the  statute  prohibits  the  exposure  of  merchandise  for 
sale  on  Sunday,  the  prohibition  extends  only  to  public  sales,  and  does 
not  prevent  private  contracts  of  sale  without  such  exposure.** 

Same — Works  of  Necessity  or  Charity. 

In  all  of  the  states  the  statutes  expressly  except  from  the  prohibition 
W^ks  ofnecessity  or  charity,  but  as  to  what  constitutes  a  work  of 
necessity  or  charity  the  authorities  are  somewhat  conflicting.  As  a 
rule,  whatever  must  be  done  in  order  to  preserve  life  or  health  *"  or 
^iroperty,'^"  and  must  be  done  on  Sunday  if  done  at  all,  is  a  work  of 
-ne££5^jty.^^     If  property  is  in  imminent  danger,   work  may  be  done 

"laboring."  Quarles  v.  State,  55  Ark.  10,  17  S.  W.  269,  14  L.  R.  A.  192.  Run- 
ning excursion  steamboat  is  "worldly  employment."  Commonwealth  v.  Rees, 
10  Pa.  Co.  Ct.  R.  545.  Acknowledgment  of  debt  barred  by  statute  of  limita- 
tions. Thomas  v.  Hunter,  29  Md.  406.  Athletic  games  and  sports  are  not 
\\ithin  the  prohibition  against  labor.  St.  Louis  Agr.  &  Mech.  Ass'n  v.  Delano, 
37  Mo.  App.  284 ;   Id.,  108  Mo.  217,  18  S.  W.  1101. 

4  7  Hazard  v.  Day,  14  Alien  (Mass.)  487,  92  Am.  Dec.  790  (construing  the 
Rhode  Island  statute);  Allen  v.  Gardner,  7  R.  I.  22;  Amis  v.  Kyle,  2  Yerg. 
(Tenn.)  31,  24  Am.  Dec.  463;  Sanders  v.  Johnson,  29  Ga.  526;  Mills  v.  Wil- 
liams, 16  S.  C.  593 ;  Hellams  v.  Abercromble,  15  S,  C.  110,  40  Am.  Rep.  684 ; 
Swann  v.  Swann  (C.  C.)  21  Fed.  299. 

4«  Boynton  v.  Page,  13  Wend.  (N.  Y.)  425;  Batsford  v.  Every,  44  Barb.  (X. 
Y.)  618.  See,  also.  Ward  v.  Ward,  75  Minn.  269.  77  N.  W.  965.  But  public 
exposure  and  sale  of  newspapers  is  within  the  statute.  Smith  v.  Wilcox.  24 
N.  Y.  353,  82  Am.  Dec.  302. 

*8  Smith  V.  Watson,  14  Vt.  332;   Aldrich  v.  Blackstone,  128  Mass.  148. 

60  Johnson  v.  People,  42  111.  App.  594  (reaping  held  of  grain);  Whitcomb  v. 
Gllmaii,  35  Vt  297;  Parmelee  v.  Wilks,  22  Barb.  (N.  Y.)  ,^)39;  State  v.  McBee, 
52  W.  Va.  257,  43  S.  E.  121. 

51  "By  the  word  'necessity'  in  the  exception  "we  are  not  to  understand  a 
physical  and  absolute  necessity ;  but  a  moral  fitness  or  propriety  of  the  work 
and  labor  done,  vmder  the  circumstances  of  any  particular  case,  may  well  be 
deemed  necessity  within  the  statute."  Flagg  v.  Inhabitants,  4  Cush.  (Mass.) 
243.  And  see  Burns  v.  Moore,  76  Ala.  339,  52  Am.  Rep.  332.  The  following  con- 
tracts have  been  held  to  be  within  the  exceptions:  Contract  securing  in- 
demnity from  an  absconding  debtor  pursued  and  overtaken  on  Sunday. 
Hooper  v.  Edwards,  18  Ala,  280.  Repairing  railroad  tracks.  Yonoski  v.  State, 
79  lud.  393.  41  Am.  Rep.  614.  Bail  bond.  Hammons  v.  State,  59  Ala.  164,  31 
Am.  Rep.  13.  Repairing  defect  in  highway.  Flagg  v.  Inhabitants,  supra. 
Shoeing  horses  used  in  carrying  mail.  Nelson  v.  State,  25  Tex.  App.  .599,  8 
S.  W.  927.  Loading  vessel  where  there  is  danger  of  navigation  closing.  Mc- 
Gatrick  v.  Wason,  4  Ohio  St.  566.  Pumping  oil  well;  whether  a  work  of  ne- 
cessity is  a  question  of  fact.  Commonwealth  v.  Gillespie,  146  Pa.  546,  23  Atl. 
393.  Transportation  of  cattle  by  a  railroad  company,  so  that  it  cannot  excuse 
itself  for  delay  on  the  ground  that  the  delay  was  on  Sunday.  Philadelphia, 
W.  &  B.  R.  Co.  V.  Lehman,  56  Md.  209,  40  Ajn.  Rep.  415.    Riding  for  exercise. 


268  LEGALITY   OF   OBJECT.  (Ch.  8 

on  Sunday  to  save  it.  If,  however,  the  work  is  only  to  prevent  loss 
on  a  secular  day,  as  where  a  mill  wheel  is  cleaned  on  Sunday  because 
to  do  so  on  another  day  will  make  it  necessary  to  shut  down  and  stop 
work  for  the  purpose,  it  is  not  a  work  of  necessity. ^^  Any  act  con- 
nected with  religious  worship,^^  or  for  the  relief  of  suffering  or  dis- 
tress,^* is  an  act  of  charity,  and  may  be  performed  on  Sunday. 

Same — Incomplete  Transactions. 

The  fact  that  negotiations  are  carried  on,  and  the  terms  of  a  con- 
tract agreed  upon,  on  Sunday,  where  the  contract  is  not  really  made 
until  a  week  day,  does  not  render  the  contract  illegal.^^     A  promissory 

Sullivan  v.  Railroad  Co.,  82  Me.  196,  19  Atl.  169,  8  L.  R.  A.  427.  Telegram 
from  liusband  to  wife  explaining  absence.  Burnett  v.  Telegraph  Ck).,  39  Mo. 
App.  599.  Telegram  to  physician.  W.  U.  Tel.  Co.  v.  Griffin,  1  Ind.  App.  46,  27 
N.  E.  113.  Telegram  annoimcing  death  of  father.  W.  U.  Tel.  Co.  v.  Wilson, 
93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23.  Transaction  of  business  by 
benefit  association.  Pepin  v.  Soci6t#  (R.  I.)  54  Atl.  47,  60  L.  R.  A.  620.  The 
following  have  been  held  not  within  the  exception:  Note  given  to  procure 
discharge  of  person  arrested  on  charge  of  bastardy.  Shippy  v.  Eastwood,  9 
Ala.  198.  Telegram  respecting  ordinary  business  affairs.  W.  U.  Tel.  Co.  v. 
Yopst  (Ind.  Sup.)  11  N.  E.  16.  Publication  and  sale  of  newspaper.  HANDY 
V.  PUBLISHING  CO.,  41  Minn.  188,  42  N.  W.  872,  4  L.  R.  A.  466,  16  Am. 
St  Rep.  695;  Commonwealth  v.  Matthews,  12  Pa.  Co.  Ct  R.  149,  22  Pittsb. 
Leg.  J.  (N.  S.)  309;  Id.,  152  Pa.  160,  25  Atl.  548,  18  L.  R.  A.  761.  Shaving 
and  cutting  or  di'essing  hair  by  a  barber.  Phillips  v.  Innes,  4  Clark  &  F. 
234;  State  v.  Schuler,  23  Wkly.  Law  Bui.  450;  State  v.  Sopher,  25  Utah, 
318,  71  Pac.  482,  60  L.  R.  A.  468.  But  see,  contra,  Ungericht  v.  State,  119 
Ind.  379,  21  N.  E.  1082,  12  Am.  St  Rep.  419;  Stone  v.  Graves,  145  Mass. 
353,  13  N.  E.  906.  Sale  of  meat  by  butcher.  Arnheiter  v.  State,  115  Ga. 
572,  41  S.  E.  989,  58  L.  R.  A.  392.  Tobacco  is  not  within  exception  allowing 
sale  of  "drugs  or  medicines,  provisions,  or  other  articles  of  immediate  ne- 
cessity."   State  V.  Ohmer,  34  Mo.  App.  115. 

C2  McGrath  v.  Merwin,  112  Mass.  467,  12  Am.  Rep.  119.  And  see,  to  the 
same  effect  Hamilton  v.  Austin,  62  N.  H.  575.  Contra,  Hennersdorf  v.  State, 
25  Tex.  App.  597,  8  S.  W.  926,  8  Am.  St  Rep.  448. 

5  3  Church  subscriptions  made  on  Sunday  are  enforceable,  see  Allen  v. 
Duffie,  43  Mich.  1,  4  N.  W.  427,  38  Am.  Rep.  159;  Bryan  v.  Watson,  127  Ind. 
42,  26  N.  E.  666,  11  L.  R.  A.  63;  Dale  v.  Knepp,  98  Pa.  389,  38  Am.  Rep.  165, 
note,  42  Am.  Rep.  624;  Hodges  v.  Nalty,  113  Wis.  507,  89  N.  W.  535.  But 
see  Catlett  v.  Trustees,  62  Ind.  365,  30  Am.  Rep.  197.  Where  a  carriage  is 
hired  on  Sunday,  the  contract  is  not  made  legal  "because  the  hirer  did  a  kind 
act  by  conveying  a  young  lady  home  who  had  been  'to  meeting'  during  the 
day."    TILLOCK  v.  WEBB,  56  Me.  100. 

64  Buck  v.  City  of  Biddeford,  82  Me.  433,  19  Atl.  912. 

6  5  Taylor  v.  Young,  61  Wis.  314,  21  N.  W.  408;  McKinnIs  v.  Estes,  81  Iowa, 
749,  46  N.  W.  987;  Tuckerman  v.  Hinkey,  9  Allen  (Mass.)  452;  Dickinson  v. 
Richmond,  97  Mass.  45;  Love  v.  Wells,  25  Ind.  503,  87  Am.  Dec.  375;  Uhler 
V.  Applegate,  20  Pa.  140;  Beitenman's  Appeal,  55  Pa.  183;  Meriwether  v. 
Smith,  44  Ga.  541;  Bryant  v.  Booze,  55  Ga.  438;  Tyler  v.  Waddington,  58 
Conn.  375,  20  Atl.  335,  8  L.  R.  A.  057;  Merrill  v.  Downs,  41  N.  H.  72;  Stack- 
pole  V.  Symonds,  23  N.  II.  229;  Moseley  v.  Vanhooser,  6  Lea  (Tenn.)  286,  40 
Am.  Rep.  37;   Butler  v.  Lee,  11  Ala.  885,  40  Am.  Dec.  230.    That  bill  of  sale 


§  153)  AGREEMENTS   IN    VIOLATION    OF    POSITIVE    LAW.  2G9 

note,  for  instance,  or  a  deed,  though  written  and  signed  on  Sunday, 
is  vahd  if  delivered  on  Monday,  since  it  does  not  take  effect  until 
delivery ;  "*  and  a  sale  of  goods,  though  the  negotiations  are  on  Sun- 
day, is  valid  if  the  goods  are  not  set  apart  and  delivered  until  Monday." 

Same — Ratification. 

Whether  a  contract  made  on  Sunday  is  capable  of  ratification  is  a 
question  on  which  there  is  much  conflict  of  authority.  Upon  principle, 
it  seems  that  the  contract,  being  void  in  its  inception,  is  incapable  of 
ratification,  and  many  cases  so  hold.''*  There  is  a  tendency,  however, 
to  avoid  the  hardship  resulting  from  the  invalidity  of  such  contracts, 
and  many  cases  declare  that  such  contracts  are  capable  of  ratification.^" 
Where  the  contract  is  one  of  sale  or  exchange  accompanied  by  actual 
delivery,  there  is  authority  to  the  effect  that  the  property  does  not 
pass,  and  that  the  seller  may  maintain  replevin '°  or  trover;®^    in 

is  made  on  Sunday,  in  pursuance  of  sale  made  on  previous  day,  does  not  in- 
validate sale.  Foster  v.  Wooten,  67  Miss.  540,  7  South.  501.  But  see  Hanctiett 
V.  Jordan,  43  Minn.  149,  45  N.  W.  617. 

5  6  King  V.  Fleming,  72  111.  21,  22  Am.  Rep.  131;  Bell  v.  Mahin,  69  Iowa, 
408,  29  N.  W.  331 ;  Hill  v.  Dunham,  7  Gray  (Mass.)  543 ;  Stacey  v.  Kemp,  97 
Mass.  166;  Lovejoy  v.  Whipple,  IS  Vt.  379,  46  Am,  Dec.  157;  Hilton  v, 
Houghton,  35  Me.  143;  Gibbs  &  Sterrett  Mfg.  Co.  v.  Brucker,  111  U.  S. 
59V,  4  Sup,  Ct,  572,  28  L.  Ed.  534;  Schwab  v.  Rigby,  38  Minn.  395,  38  N.  W. 
101;  Dohoney  v.  Dohoney,  7  Bush  (Ky.)  217;  Beman  v.  Wessels,  53  Mich, 
bid;  19  N,  W.  179;  Wilson  v.  Winter  (C.  C.)  6  Fed.  16.  So,  where  one  of  two 
partners  executes  an  assignment  on  Sunday,  but  the  other  partner  executes 
and  delivers  it  on  a  secular  day,  the  instrument  is  valid.  Farwell  v.  Webster, 
71  Wis.  485,  37  N.  W.  437. 

B7  Rosenblatt  v.  Townsley,  73  Mo.  536;   Banks  v.  Werts,  13  lud.  203. 

58  Day  V.  McAllister,  15  Gray  (Mass.)  4.33;  Allen  v.  Deming,  14  N.  H.  133, 
40  Am.  Dec.  179;  Winrteld  v.  Dodge,  45  Mich.  355,  7  N.  W.  906,  40  Am.  Rep. 
476;  TILLOCK  v.  WEBB,  56  Me.  100;  Plaisted  v.  Palmer,  63  Me.  570; 
Kountz  V.  Price,  40  Miss.  341;  Grant  v.  McGrath,  56  Conn.  333,  15  Atl.  370; 
Vinz  V.  Beatty,  61  Wis.  645,  21  N.  W.  787;  Riddle  v.  Keller,  61  N.  J.  Eq.  513, 
48  Atl.  818;  Acme  Electrical,  etc.,  Co.  v.  Van  Derbeck,  127  Mich.  341,  80  N. 
W.  786;   Tennent-Stribling  Shoe  Co.  v.  Roper,  94  Fed.  738,  36  C.  C.  A.  455. 

5  9  Russell  v.  Murdock,  79  Iowa,  101,  44  N.  W.  237,  18  Am.  St.  Rep.  348 ;  Kuhns 
v.  Gates.  92  Ind.  66;  Adams  v.  Gay,  19  Vt.  358;  Parker  v.  Pitts,  73  Ind.  597, 
38  Am.  Rep.  155;  Banks  v.  Werts,  13  Ind.  203;  Gwinn  v.  Simes,  Gl  Mo.  335; 
Wilson  V.  Milligan,  75  Mo.  41;  Campbell  v.  Young,  9  Bush  (Ky.)  245;  William- 
son V.  Brandenberg,  6  Ind.  App.  97,  32  N.  E.  1022;  Sumner  v.  Jones,  24  Vt. 
317;  Flinn  v.  St  John,  51  Vt.  334;  Schmidt  v.  Thomas,  75  Wis.  529,  44  N.  W. 
771 ;  Van  Hoven  v.  Irish  (C.  C.)  10  Fed.  13,  3  McCrary,  443 ;  Cook  v.  Forker, 
193  Pa.  461,  44  Atl.  560,  74  Am.  St  Rep.  699. 

00  Tucker  v.  Mowray,  12  Mich.  378;  Winfield  v.  Dodge,  45  Mich.  355,  7  N, 
W.  906,  40  Am.  Rep.  476.  See,  also,  Magee  v.  Scott  9  Cush,  148,  55  Am.  Dec. 
49.  Contra,  Smith  v.  Bean,  15  N.  II.  577,  578 ;  Kinney  v.  McDermott  55  Iowa, 
674,  8  N.  W.  656.  See,  also,  SIMPSON  v.  NICHOLS,  3  M.  &  W.  244,  as  cor- 
rected in  5  M.  &  W.  702  (questioning  Williams  v.  Paul,  6  Bing.  653). 

ci  Ladd  V.  Rogers,  11  Allen,  209.  See,  also,  Myers  v.  Meinrath.  101  Mass. 
366,  369,  3  Am.  Rep.  368;  Hall  v.  Corcoran,  107  Mass,  251,  9  Am,  Rep.  30; 
Cranson  v,  Goss,  Id.  439,  441,  9  Am.  Rep.  45. 


270  LEGALITY   OF   OBJECT.  (Ch.  8 

which  case  it  seems  that  a  sufficient  consideration  for  a  new  promise 
to  pay  may  be  found  in  the  consent  of  the  seller  to  the  transfer  of  the 
property  at  the  time  of  such  promise;  the  liability  of  the  promisor 
resting,  however,  upon  a  new  contract,  and  not  upon  the  ratification 
of  the  original  contract.®^  So,  if  a  sale  is  made  on  Sunday,  but  the 
goods  are  not  delivered  until  a  week  day,  the  buyer  is  liable,  not  upon 
the  original  promise,  but  upon  an  implied  promise  to  pay  for  the 
goods. °^  A  contract  made  on  a  previous  day  cannot  be  rescinded  on 
Sunday.'* 

Usii^ry. 

At  common  law  a  man  could  contract  for  and  recover  any  amount  of 
interest  for  a  loan  of  money  that  the  borrower  might  be  willing  to  give ; 
but,  to  protect  persons  in  necessity  against  unconscionable  exactions, 
usury  laws  have  been  enacted  in  most  of  the  states,  prescribing  a  legal 
rate  of  interest. 

In  some  states  the  contract  in  which  usury  is  charged  is  declared 
void.  In  many  states  the  contract  is  not  void,  but  the  entire  interest  is 
forfeited.  In  other  states  only  the  excess  of  interest  charged  is  for- 
feited ;   the  legal  amount  is  nevertheless  recoverable. 

Difficult  questions  arise  in  determining  what  amounts  to  usury.  The 
following  general  rules  may  be  stated :  In  the  first  place  there  must  be 
a  lending  and  borrowing  of  money.  If  it  is  so  understood  by  the 
parties,  no  shifting  or  contrivance  for  the  purpose  of  disguising  the 
real  nature  of  the  transaction  can  avail  to  evade  the  statute;  and,  on 
the  other  hand,  if  it  was  not  a  borrowing  and  lending,  it  cannot  be 
brought  within  the  statute.^ ^     The  parties  to  a  contract,  for  instance, 

62  Winfleld  v.  Dodge,  45  Mich.  355,  7  N.  W.  906,  40  Am.  Rep.  476;  Haacke 
V.  Knights  of  Liberty,  76  Md.  429,  25  Atl.  422;  Brewster  v.  Banta,  66  N.  J. 
Law,  367,  49  Atl.  718.  An  action  may  be  maintained  on  a  new  promise. 
Williams  v.  Paul,  6  Bing.  653;  Harrison  v.  Colton.  31  Iowa,  16;  Melchoir  v. 
McCarty,  31  Wis.  252,  11  Am.  Rep.  605.  See  Winchell  v.  Gary,  115  Mass.  560, 
15  Am.  Rep.  151.  Contra,  Bontelle  v.  Melendy,  19  N.  H.  196,  49  Am.  Dec. 
152;    Kountz  v.  Price,  40  Miss.  341. 

6  3  Bradley  v.  Rea,  14  Allen,  20;  Id.,  103  Mass.  188,  4  Am.  Rep.  524;  Hopkins 
V.  Stefan,  77  Wis.  45,  45  N.  W.  676 ;  Flynn  v.  Columbus  Club,  21  R.  I.  534,  45 
Atl.  551;  Bollin  v.  Hooper,  86  Mich.  287,  86  N.  W.  795.  The  delivery  must  be 
accompanied  by  circumstances  showing  new  contract.  Aspell  v.  Hosbein,  98 
Mich.  117,  57  N.  W.  27.  Defendant,  who  was  indebted  to  plaintiff,  agreed  on 
Sunday  to  furnish  a  laborer  on  Monday  to  help  plaintiff's  son  thresh,  on 
plaintiff's  account,  which  he  did,  and  the  son  paid  plaintiff  a  sum,  which 
the  latter  placed  to  defendant's  credit.  Held,  that  the  transaction  on  Mon- 
day did  not  show  the  elements  of  a  contract  without  relying  on  the  Sunday 
transaction,  and  hence  was  not  sufficient  to  take  the  account  out  of  the 
statute  of  limitations.    Pillen  v.  Erickson,  125  Mich.  68,  83  N.  W.  1023. 

«4  Benedict  v.  Batchelder,  24  Mich.  425,  9  Am.  Rep.  130. 

er.  Tyson  v.  Rickard,  3  Har.  &  J.  (Md.)  109,  5  Am.  Dec.  424;  Price  v.  Camp- 
bell, 2  Call  (Va.)  110,  1  Am.  Dec.  535;   Ferguson  v.  Sutphen,  8  Oilman  (111.)- 


§  153)  AGREEMENTS   IN    VIOLATION   OF   POSITIVE    LAW.  271 

may  agree  on  a  sum  as  stipulated  damages  in  case  of  breach,  and  it 
may  be  recovered,  though  it  exceeds  the  legal  interest  on  the  value  of 
property  vv^hich  should  have  been  paid.^«  So,  aJso,  on  a  loan  of  chat- 
tels, the  agreed  compensation  may  be  recovered,  though  it  exceeds 
what  would  be  the  legal  rate  of  interest  on  the  value  of  the  chattel ;  ®^ 
and,  after  a  negotiable  instrument  has  been  executed  and  delivered, 
it  is  not  usury  for  a  person  to  buy  it  from  the  holder  at  a  discount 
greater  than  the  legal  rate  of  interest,  except,  according  to  some  opin- 
ions, in  the  case  of  accommodation  paper.**^  In  neither  of  these  cases 
is  there  a  loan  or  forbearance  of  money.*"'  As  already  said,  however, 
the  contract  must  be  made  bona  fide,  and  not  as  a  cover  for  a  loan.''*' 

547;  Osborn  v.  McCowen,  25  111.  218;  Struthers  v.  Drexel,  122  U.  S.  487,  7 
Sup.  Ct.  1293,  30  L.  Ed.  1216;  Gaither  v.  Clai-ke,  67  Md.  18,  8  Atl.  740;  Hart- 
lanft  V.  Uhlinger,  115  Pa.  270,  8  Atl.  244;  Lukens  v.  Hazlett,  37  Minn.  441,  35 
N.  W.  265;  Pope  v.  Marshall,  78  Ga.  635,  4  S.  E.  116;  Drury  v.  Wolfe,  34  111. 
App.  23;  Id.,  134  111.  294,  25  N.  E.  626.  Money  paid  above  the  legal  rate  for 
the  forbearance  of  an  existing  debt  is  usury.  Hatliaway  v.  Hagau,  59  Vt.  75, 
8  Atl.  678.  Charging  "banker's  commission."  Bowdoin  v.  Hammond,  79  Md. 
173,  28  Atl.  769.  An  agreement  by  which  a  party  lends  bonds  and  the  bor- 
rower agrees  to  pay  to  the  owner  the  interest  paid  by  the  government,  and 
6  per  cent,  in  addition,  is  not  a  contract  for  the  loan  of  money.  Marshall  v. 
Rice,  85  Tenn.  502,  3  S.  W.  177.  Loans  by  building  and  loan  association. 
Jackson  v.  Cassidy,  68  Tex.  282,  4  S.  W.  541;  Tilley  v.  Association  (C.  C.)  52 
Fed.  618;  Succession  of  Latchford,  42  La.  Ann.  529,  7  South.  628;  Hensel  v. 
Association,  85  Tex.  215,  20  S.  W.  116;  International  Bldg.  &  Loan  Ass'n  v. 
Abbott,  85  Tex.  220,  20  S.  W.  118;  Sullivan  v.  Association,  70  Miss.  94,  12 
South.  590;  Reeve  v.  Association,  56  Ark.  335,  19  S.  W.  917,  18  L.  R.  A.  129; 
Iowa  Savings  &  Loan  Ass'n  v.  Heidt,  107  Iowa,  356,  77  N.  W.  1050,  43  L.  R. 
A.  689,  70  Am.  St.  Rep.  197;  Washington  Nat.  Building,  Loan  &  Investment 
Ass'n  v.  Stanley,  38  Or.  319,  63  Pac.  489.  58  L.  R.  A.  816,  84  Am.  St.  Rep.  793. 
Four  things,  It  is  said,  are  necessary  to  constitute  usury:  (1)  A  loan,  ex- 
press or  implied;  (2)  an  understanding  between  the  parties  that  the  money 
shall  be  or  may  be  returned;  ^3)  th_at  for  such_loan  a  greater  rate  of  interest 
than  is  allowed  by  law  shall  be  paid,  or  agreed  to  be  paid;  and  (4)  a  corrupt 
intent  to  take  more  than  the  legal  rate  for  the  use  of  the  sum  loaned.  Bal- 
four v.  Davis,  14  Or.  47,  12  Pac.  89. 

«6  Tardeveau  v.  Smith's  Ex'r,  Hardin  (Ky.)  175;  Blackburn  v.  Hayes,  59 
Ark.  366,  27  S.  W.  240. 

<i7  Hall  V.  Haggart,  17  Wend.  (N.  Y.)  280;    Bull  v.  Rice.  5  N.  Y.  315. 

«8  Lloyd  V.  Keach,  2  Conn.  175,  7  Am.  Dec.  256;  Nichols  v.  Fearson,  7  Pet. 
103,  8  L.  Ed.  623;  Munn  v.  Commission  Co.,  15  .Johns.  (N.  Y.)  44,  8  Am.  Dec. 
219;  Cram  v.  Hendricks,  7  Wend.  (N.  Y.)  569;  Jackson  v.  Travis,  42  Minn.  438, 
44  N.  W.  316 ;  Holmes  v.  Bank,  53  Minn.  350,  55  N.  W.  555 ;  Claflin  v.  Boorum, 
122  N.  Y.  3S5,  25  N.  E.  360;  Chase  Nat.  Bank  v.  Faurot  (Sup.)  25  N.  Y.  Supp. 
447;  Rodecker  v.  Littauer,  59  Fed.  857,  8  C.  C.  A.  320.  There  is  some  conflict 
of  opinion  on  this  question.  See  Dickerman  v.  Day,  31  Iowa,  444,  7  Am.  Rep. 
156  (collecting  authorities). 

8  8  See,  also,  Truby  v.  Mosgrove,  118  Pa.  89,  11  Atl.  806,  4  Am.  St.  Rep. 
575 ;  Appeal  of  Trine  (Pa.)  13  Atl.  765 ;  Union  Cent  Life  Ins.  Co.  v.  Hilliard,  63 

TO  See  note  70  on  following  page. 


272  LEGALITY  OF  OBJECT.  (Ch.  8 

It  has  also  been  held  that  if  a  person  agrees  to  pay  a  specific  sum, 
exceeding  the  lawful  interest,  provided  he  does  not  pay  the  principal 
by  a  jiay_  certain,  it  is  not  usury,  since  by  a  punctual  payment  of  the 
principal  he  may  avoid  the  payment  of  the  sum  stated,  which  is  con- 
sidered as  a  penalty ;  ^^  and,  further,  that  where  a  loan  is  made,  to  be 
returned  at  a  fixed  day,  with  more  than  the  legal  rate  of  interest,  de- 
pending on  a  casualty  .Jsd1irh-i1azards.J3.Olh  principal  and  interest,  the 
contract  is  not  usurious;  but  where  the  interest,  only,  is  hazarded,  it 
is  usury.'' ^ 

As  to  whether  it  is  usury  to  charge  compound  interest, — that  is, 
interest  upon  overdue  interest, — the  decisions  are  conflicting,  but  ac- 
cording to  the  weight  of  authority  it  is  not  so  regarded ;  but  interest 
cannot  be  charged  on  interest  not  due.''*     It  is  not  usury  to  provide 

Ohio  St.  478,  59  N.  E.  231,  53  L.  R.  A.  4G2,  81  Am.  St.  Rep..  644.  If  a  person 
sells  chattels  or  land  on  credit,  the  fact  that  he  charged  a  larger  sum  than  he 
would  have  charged  if  he  had  sold  for  cash  does  not  render  the  transaction 
usurious.  Bull  v.  Rice,  5  N.  Y.  315 ;  Brooks  v.  Avery,  4  N.  Y.  225 ;  Gilmore 
V.  Ferguson,  28  Iowa,  220;  Swayne  v.  Riddle,  37  W.  Va.  291,  16  S.  E.  512; 
Brown  v.  Gardner,  4  Lea  (Tenn.)  145 ;  Graeme  v.  Adams,  23  Grat.  (Va.)  225, 
14  Am.  Rep.  130 ;  Wheeler  v.  Marchbanks,  32  S.  C.  594,  10  S.  E.  1011 ;  Bass 
V.  Patterson,  68  Miss.  310,  8  South.  849,  24  Am.  St.  Rep.  279,  Contra,  Fisher 
V.  Hoover,  3  Tex.  Civ.  App.  81,  21  S.  W.  930.  Where  on  a  purchase  of  land 
the  vendee  agrees  to  pay,  as  part  of  the  price,  on  deferred  payments  in  excess 
of  the  legal  rate,  the  contract  is  not  usurious.  Askin  v.  Lebus  (Ky.)  4  S.  W. 
305 ;  Ileger  v.  O'Neal,  33  W.  Va.  159,  10  S.  B.  375,  6  L.  R.  A.  427 ;  Dykes  v. 
Bottoms,  101  Ala.  390,  13  South.  582.  For  other  cases  in  which  it  has  been 
held  that  the  relation  of  borrower  and  lender  did  not  exist,  see  Appeal  of 
Donehoo  (Pa.)  15  Atl.  924 ;  Niebuhr  v.  Schreyer  (Com.  PI.)  13  N.  Y.  Supp.  809 ; 
McComb  V.  Association,  134  N.  Y.  598,  31  N.  E.  613;  Duval  v.  Neal,  70  Miss. 
288,  12  South.  145 ;  Eddy's  Ex'r  v.  Northup  (Ky.)  23  S.  W.  353.  Sale  or  loan. 
Ellenbogen  v.  Griffey,  55  Ark.  2G8,  18  S.  W.  126.  Sale  below  par  of  city  bonds 
bearing  highest  rate  of  interest  not  usurious.  City  of  Memphis  v.  Bethel 
(Tenn.)  17  S.  W.  191. 

7  0  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  833.  Discount  of  paper  as  cover  for 
loan.  Churchill  v.  Suter,  4  Mass,  156;  Jones  v.  Hake,  2  Johns.  Cas.  (N.  Y.)  GO; 
Wilkie  V.  Roosevelt,  3  Johns.  Cas.  (N.  Y.)  66;  Claflin  v.  Boorum,  122  N.  Y. 
385,  25  N.  E.  360. 

71  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  833;  Gambril  v.  Doe,  8  Blackf.  (Ind.) 
140,  44  Am.  Dec.  760;  Fisher  v.  Anderson,  25  Iowa,  28,  95  Am.  Dec.  761; 
Rigbter  v.  Warehouse  Co.,  99  Pa.  289;  McNairy  v.  Bell,  1  Yerg.  (Tenn.)  502, 
24  Am.  Dec.  4,54;  Walker  v.  Abt,  83  111.  226;  Ramsey  v.  Morrison,  39  N.  J. 
Law,  591 ;  Conrad  v.  Gibbon,  29  Iowa,  120;  Hackenberry  v.  Shaw,  11  Ind. 
392;  Rogers  v.  Sample,  33  Miss.  310,  69  Am.  Dec.  349.  But  see  Carroll  Co. 
Sav.  Bank  v.  Strother,  28  S.  C.  504,  6  S.  E.  313;  Connecticut  Mat.  Life  Ins. 
Co.  V.  Westerhoff,  58  Neb.  379,  78  N.  W.  724;  Linton  v.  Insui-ance  Co.,  104 
Fed.  584,  44  C.  C.  A.  54. 

72  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  833;  Truby  v.  Mosgrove,  118  Pa.  89, 
11  Atl.  806,  4  Am.  St  Rep.  575;  Thorndike  v.  Stone,  11  Pick.  (Mass.)  183; 
Wilson  V.  Kilburn,  1  J.  J.  Marsh.  (Ky.)  494;  Spencer  v.  Tilden,  5  Cow.  (N.  Y.) 
144;    Hoist  v.  Hlaisdell,  198  Pa.  377,  48  Atl.  259. 

78  Stewart  v.  Petree,  55  N.  Y.  621;   Culver  v.  Bigelow,  43  Vt  249;   Quimby 


§  153)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW.  273 

for  payment  of  an  attorney's  fee  if  the  debt  has  to  be  collected  by 
suit;  ^*  nor  to  require  payment  in  advance  of  the  highest  legal  rate;  ""^ 
nor,  under  some  circumstances,  to  pay  a  broker  a  commission,  or  for 
expenses,  for  procuring  the  loan,^°  provided,  as  in  other  cases,  it  is  not 

V.  Cook,  10  Allen  (Mass.)  32;  Merck  v.  Mortgage  Co.,  79  Ga.  213,  7  S.  E.  265; 
Austin  V.  Bacon.  28  Wis.  416;  Taylor  v.  Hiestand,  4(!  Ohio  St.  345,  20  N.  E. 
345;  Gihuore  v,  Bissell,  124  111.  48S,  16  N.  E.  925;  Brown  v.  Vandyke,  8  N.  J. 
Eq.  795,  55  Am.  Dec.  250;  Keiser  v.  Decker,  29  Neb.  92,  45  N.  W.  272:  Tel- 
ford V.  Garrels,  132  111.  550,  24  N.  E.  573;  Hale  v.  Hale,  1  Cold.  (Tenn.)  233, 
78  Am.  Dec.  490;  Ginn  v.  Security  Co.,  92  Ala.  135,  8  Soutb.  388;  Brown  v. 
Bank,  86  Iowa,  527,  53  N.  W.  410.  See,  for  distinctions.  Cox  v.  Brookshire, 
76  N.  C.  314;  Simpson  v.  Evans,  44  Minn.  419,  46  N.  W.  908;  Kimbrougb  v. 
Lukins,  70  Ind.  373;  Drury  v.  Wolfe,  134  111.  294,  25  N.  E.  626;  Leonard  v. 
Pattou,  106  111.  99;  Mathews  v.  Toogood,  23  Neb.  536,  37  N.  W.  265,  8  Am. 
St.  Rep.  131;  Hochmark  v.  Rlchler,  16  Colo.  263.  26  Pac.  818;  Young  v.  Hill, 
67  N.  Y.  162,  23  Am.  Kep.  99.  In  some  jurisdictions,  however,  the  courts 
have  refused  to  allow  recovery  of  interest  on  interest,  on  the  ground  that  it 
savored  of  usury,  and  was  contrary  to  the  policy  of  the  law.  See  Bowman  v. 
Neely,  151  111.  37,  37  N.  E.  840;  Wilcox  v.  Howland,  23  Pick.  (Mass.)  167; 
Henry  v.  Flagg.  13  Mete.  (Mass.)  64;  Cox  v.  Smith,  1  Nev.  133,  90  Am.  Dec. 
476;    Young  v.  Hill,  67  N.  Y.  162,  23  Am.  Rep.  99. 

T4  Weatherby  v.  Smith,  30  Iowa.  131.  6  Am.  Rep.  663;  Dorsey  v.  Wolff,  142 
111.  589,  32  N.  E.  495,  18  L.  R.  A.  428,  34  Am.  St.  Rep.  99;  Williams  v.  Flowers, 
90  Ala.  136,  7  South.  439,  24  Am.  St.  Rep.  772;  Merck  v.  Mortgage  Co.,  79  Ga. 
213,  7  S.  E.  265;  Smith  v.  Silvers,  32  Ind.  321;  First  Nat.  Bank  v.  Canatsey, 
34  Ind.  149;  National  Bank  of  Athens  v.  Danforth,  80  Ga.  55,  7  S.  E.  546; 
Shelton  v.  Aultman  &  Taylor  Co.,  82  Ala.  315,  8  South.  232;  Fowler  v.  Trust 
Co.,  141  U.  S.  411,  12  Sup.  Ct.  8,  35  L.  Ed.  794.  Otherwise  by  statute  in  some 
states. 

75  Parker  v.  Cousins,  2  Grat.  (Va.)  372,  44  Am.  Dec.  388;  Telford  v.  Gar- 
rels, 132  111.  550,  24  N.  E.  573;  Meyer  v.  Muscatine,  1  Wall.  384,  17  L.  Ed.  564; 
Vahlberg  v.  Keaton,  51  Ark.  534,  11  S.  W.  878,  4  L.  R.  A.  462,  14  Am.  St.  Rep. 
73;  Goodrich  v.  Reynolds,  31  III.  490,  83  Am.  Dec.  240;  Fowler  v.  Trust  Co., 
141  U.  S.  384,  12  Sup.  Ct.  1,  35  L.  Ed.  786;  English  v.  Smock,  34  Ind.  115,  7 
Am.  Rep.  215;  Newell  v.  Bank,  12  Bush  (Ky.)  57;  Rose  v.  Munford,  36  Neb. 
148,  54  N.  W.  129;  Hawks  v.  Weaver,  46  Barb.  (N.  Y.)  164;  Mackenzie  v. 
Flanncry,  90  Ga.  590,  16  S.  E.  710. 

T6  Suydam  v.  Wostfall,  4  Hill  (N.  Y.)  211;  Matthews  v.  Coe,  70  N.  Y.  239, 
26  Am.  Rep.  583;  Merck  v.  Mortgage  Co.,  79  Ga.  213,  7  S.  E.  265;  Boardman 
V.  Taylor,  66  Ga.  638;  Haldeman  v.  Insurance  Co.,  120  111.  390,  11  N.  E.  520; 
New  England  Mortgage  Security  Co.  v.  Gay  (C.  C.)  33  Fed.  636;  Thomas  v. 
Miller,  39  Minn.  339,  40  N.  W.  358;  Baird  v.  Millwood,  51  Ark.  548,  11  S.  W. 
881;  Cockle  v.  Flack,  93  U.  S.  344,  23  L.  Ed.  949;  Pass  v.  Security  Co.,  66 
Miss.  365,  6  South.  239;  Hughes  v.  Griswold.  82  Ga.  299,  9  S.  E.  1092;  Hall 
v.  Daggett,  6  Cow.  (N.  Y.)  653;  Nourse  v.  Prime,  7  Johns.  Ch.  (N.  Y.)  69;  Tel- 
ford V.  Garrels,  132  111.  550,  24  N.  E.  573;  Ginn  v.  Security  Co.,  92  Ala.  135,  8 
South.  388;  White  v.  Dwyer,  31  N.  J.  Eq.  40;  Davis  v.  Sloman.  27  Neb.  877, 
44  N.  W.  41;  Weems  v.  Jones,  86  Ga.  760,  13  S.  E.  89.  Even  the  lender,  it  has 
been  held,  may  charge  for  extra  services  and  expenses,  for,  to  constitute  usury, 
the  charge  must  be  for  the  loan  or  forbearance.  Atlanta  Mining  &.  Rolling 
Mill  Co.  V.  Gwyer,  48  Ga.  9;  Morton  v.  Thurber,  85  N.  Y.  550;  Ammondson  v. 
Ryan,  111  111.  506;  De  Forest  v.  Strong,  8  Conn.  513;  Dayton  v.  Moore,  30 
N.  J.  Eq.  543;  Daley  v.  Investment  Co.,  43  Minn.  517,  45  N.  W.  1100;  Swan- 
Clark  CoJNT.  (2d  Eu.)— is 


274  LEGALITY   OF   OBJECT.  ^Ch.  8 

a  cover  for  a  usurious  transaction/^  It  has  been  held  that  it  is  usury 
to  delay  payment  of  the  money  loaned,  and  exact  interest  for  the  full 
time.'^^ 

If  a  contract  reserves  excessive  interest  merely  because  of  a  mistaken 
calculation,  it  is  not  for  that  reason  usurious.  There  must  be  an 
intention  to  charge  and  to  pay  the  illegal  rate.'^^ 

A  note  given  for  a  balance  due  on  previous  notes  which  were  usuri- 
ous, or  in  renewal  of  usurious  notes,  is  itself  tainted  with  usury,^° 

Strom  V.  Balstad,  51  Minn.  276,  53  N.  W.  648;  Iowa  Savings  &  Loan  Ass'n  v. 
Heidt,  107  Iowa,  356,  77  N.  W.  1050,  43  L.  R.  A.  689,  70  Am.  St.  Rep.  197, 
But  see  Jaclisou  v.  May,  28  111.  App.  305.  But  if  the  lender  exacts  a  bonus  in 
addition  to  interest  at  legal  rate,  it  is  usury.  Fanning  v.  Dunham,  5  Johns. 
Ch.  (N.  Y.)  122;  Hewitt  v.  Dement,  57  111.  500;  Walter  v.  Foutz,  52  Md.  147; 
Harris  v.  AVicks,  28  Wis.  198;  Stark  v.  Sperry,  6  Lea  (Teun.)  411,  40  Am.  Rep. 
47;  Rowland  v.  Bull,  5  B.  Mon.  (Ky.)  146.  But  exacting  bonus  or  commission 
by  agent  as  condition  of  making  loan  at  legal  interest  for  his  principal,  with- 
out knowledge  or  consent  of  the  latter,  does  not  constitute  usury  in  the  prin- 
cipal. Stillman  v.  Northrup,  109  N.  Y.  473,  17  N.  E.  379;  New  England  Mort- 
gage Security  Co.  v.  Townes  (Miss.)  1  South.  242;  Acheson  v.  Chase,  28  Minn. 
211,  9  N.  W.  734;  Ballinger  v.  Bouriand,  87  111.  513,  29  Am.  Rep.  69;  Boyiston 
V.  Bain,  90  111.  283;  Williams  v,  Bryan,  68  Tex.  593,  5  S.  W.  401;  Lane  v.  In- 
surance Co.,  46  N.  J.  Eq.  316,  19  Atl.  617,  618;  May  v.  Flint,  54  Ark.  573,  16 
S.  W.  575;  Boardman  v.  Taylor,  66  Ga.  638;  Ammerman  v.  Ross,  84  Iowa, 
359,  51  N.  W.  6 ;  Dryfus  v.  Burnes  (C.  C.)  53  Fed.  410.  Not  even  where  agent 
is  general  agent  of  lender  to  loan  money,  if  illegal  exaction  is  solely  for  agent's 
benefit,  and  without  knowledge  or  sanction  of  lender,  and  he  in  no  way  rati- 
fies it.  Stein  v.  Swensen,  44  Minn.  218,  46  N.  W.  360.  But  see  Kemmitt  v. 
Adamson,  44  Minn.  121,  46  N.  W.  327.  If  the  principal  knows  of  exaction, 
contract  is  usurious.  Banks  v.  Flint,  54  Ark.  40,  14  S.  W.  769,  16  S.  W.  477, 
10  L.  R.  A.  459 ;  Bliven  v.  Lydecker,  130  N.  Y.  102,  28  N.  E.  625 ;  Payne  v. 
Newcomb,  100  111.  611,  39  Am.  Rep.  69.  Payment  to  attorney  for  examining 
title.  Goodwin  v.  Bishop,  145  111.  421,  34  N.  E.  47.  Bonus  paid  by  borrower 
to  liis  own  agent  for  procuring  loan  is  no  part  of  sum  paid  for  loan.  Dryfus 
V.  Burnes  (C.  C.)  53  Fed.  410;  Goodwin  v.  Bishop,  145  111.  421,  34  N.  E.  47; 
Grieser  v.  Hall,  56  Minn.  155,  57  N.  W.  462.  But  see,  contra,  where  lender 
knew  of  payment.  Brown  v.  Brown,  38  S.  C.  173,  17  S.  E.  452.  And  see  Holt 
\'.  Kii-by,  57  Ark.  251,  21  S.  W.  432. 

7  7  Sherwood  v.  Roundtree  (C.  C.)  32  Fed.  113;  Pfenning  v.  Scholer,  43  N.  J. 
Eq.  15,  10  Atl.  833;   Sanford  v.  Kane,  133  111.  199,  24  N.  E.  414. 

7  8  Barr's  Adm'x  r.  African  M.  E.  Church  (N.  J.  Eq.)  10  Atl.  287.  Cf.  Daley 
V.  Investment  Co.,  43  Minn.  517,  45  N.  W.  1100;  Rose  v.  Muiiford,  36  Neb.  148, 
54  N.  W.  129. 

7  0  Tyson  v.  Rickard,  3  Har.  &  J.  (Md.)  109,  5  Am.  Dec.  424;  Bevier  v.  Covell, 
87  N.  Y.  50;  Gibson  v.  Stearns,  3  N.  H.  185;  Smythe  v.  Allen,  67  Miss.  146,  6 
South.  627;  Bearce  v.  Barstow,  9  Mass.  45,  6  Am.  Dec.  25;  Brown  v.  Bank,  86 
Iowa,  527,  .53  N.  W.  410;  Lloyd  v.  Scott,  4  Pet.  205,  7  L.  Ed.  833;  Price  v. 
Campbell,  2  Call  (Va.)  110,  1  Am.  Dec.  535;  McFarland  v.  Bank,  4  Ark.  44,  37 
Am.  Dec.  761;  Henry  v.  Sansom,  2  Tex.  Civ.  App.  150,  21  S.  W.  69;  McEl- 
fatrick  v.  Hicks,  21  Pa.  402. 

80  Cottrell  V.  Southwick,  71  Iowa,  50,  32  N.  W.  22;  Exley  v.  Berryhill.  37 
Minn.  182,  33  N.  W.  507;  McDonald  v.  Aufdengarten,  41  Neb.  40,  59  N.  W. 
762;   Levey  v.  Allien,  72  Hun,  321,  25  N.  Y.  Supp.  352.    If,  however,  a  usurious 


§  153)  AGREEMENTS   IN   VIOLATION   OF  POSITIVE   LAW.  275 

but  a  note  g-iven  to  a  third  party  for  money  to  be  applied  in  payment 
of  other  notes  which  were  usurious  is  not  itself  usurious.^ ^ 

Wagers  and  Gambling  Transactions. 

A  "wager"  has  been  defined  as  a  rnntmrt  roT^ditional  upon  an  ev€nt-' 
in  which  the  parties  have  no  interest  ej^ccgpt  that  which  they  create  hy- 
the  wager;  ^^  but  this  attempts  to  limit  the  term  to  contracts  not  per- 
mitted by  law,  and  is  not  broad  enough.  Parties  may  make  a  wager 
on  a  matter  in  which  they  are  interested.  It  is  more  accurate  to  say 
that  a  wager  is  a  promise  to  pay  money  or  transfer  property  upon 
the  determination  or  ascertainment  of  an  uncertain  event  or  fact,  the 
consideration  for  the  promise  being  either  a  present  payment  or  transfer 
by  the  other  party,  or  a  promise  to  do  so  upon  the  event  or  fact  being 
determined  or  ascertained  in  a  particular  w^ay.^'  The  term  is  often 
applied  to  contracts  not  permitted  by  law,  as  opposed  to  others  which, 
though  precisely  similar  in  their  nature,  may  be  enforced,  and  this  has 
resulted  in  some  confusion. 

A  wager  may  be  what  we  understand  by  a  "bet," — that  is,  a  purely 
gambling  transaction, — or  it  may  be  directed  to  commercial  objects. 
A  man  who  bets  on  the  result  of  a  horse  race  makes  a  wagering  con- 
tract;  but  so  does  a  man  who  takes  out  a  policy  of  insurance,  for  he 

contract  is  mutually  abandoned  by  the  parties,  and  the  securities  canceled  or 
destroyed,  so  that  they  may  not  become  the  foundation  of  an  action,  and  the 
borrower  then  makes  a  contract  to  pay  the  amount  actually  received  by  him, 
this  last  contract  will  not  be  tainted  with  the  original  usury.  Sheldon  v. 
Haxtuu,  91  N.  Y.  125;  Levey  v.  Allien,  supra;  Porter  v.  Jefferies,  40  S.  C 
92,  IS  S.  E.  229. 

81  Cotti-ell  V.  Southwick,  71  Iowa,  50,  32  N.  W.  22;  Vaught  v.  Kider,  83 
Va.  659,  3  S.  E.  293,  5  Am.  St.  Rep.  305;  France  v.  Smith,  87  Iowa,  552,  54 
N.  W.  366.  Contra,  where  the  transaction  is  a  mere  cover  for  a  usurious  loan. 
Luckens  v.  Hazlett,  37  Minn.  441,  35  N.  W.  265. 

8  2  Lealie,  Cont.  377.  By  the  terms  of  a  note,  given  in  part  payment  of  land, 
defendant  promised  to  pay  $900  if  cotton  should  rise  to  S  cents  by  a  certain 
date,  and,  if  not,  to  pay  $500.  It  was  held  that  the  agreement  was  not  a 
wager  on  the  price  of  cotton,  "for  the  pai-ties  had  an  interest  in  the  contin- 
gency. The  defendant  purchased  the  land  at  the  lowest  price,  uncondition- 
ally, but  contracted  to  pay  a  larger  sum  if  the  value  should  be  enhanced  by 
the  increased  value  of  its  product."  FERGUSON  v.  COLEMAN,  3  Rich.  Law 
(S.  C.)  99,  45  Am.  Dee.  761.  A  contract  by  which  a  party  purchases  50  bush- 
els of  "Bohemian  oats"  at  $10  a  bushel,  and  the  seller  agrees  to  sell  for  him 
the  next  year  100  bushels  at  $10  a  bushel,  has  been  held  not  to  be  a  gam- 
bling contract.  Shipley  v.  Reasoner,  80  Iowa,  548.  45  N.  W.  1077;  :*Iatson  v. 
Blossom,  50  Hun,  600,  2  N.  Y.  Supp.  551.  Contra,  Sehmueckle  v.  Waters,  125 
Ind.  265,  25  N.  E.  281.  Such  contracts,  however,  are  illegal,  since  they  can- 
not be  performed  without  defrauding  some  one.  Hanks  v.  Brown,  79  Iowa, 
560,  44  N.  W.  811;  Merrill  v.  Packer,  80  Iowa,  542,  45  N.  W.  1076.  Contra, 
Matson  v.  Blossom,  supra.  For  similar  conti-act,  illegal  because  tending  to 
defraud,  see  Hubbard  v.  Freibm-ger  (INIich.)  94  N.  W.  727. 

83  Anson,  Cont.  (4th  Ed.)  173;   HAMPDEN  v.  WALSH,  1  Q.  B.  Div.  189. 


276  LEGALITY  OF   OBJECT.  (Ch.  8 

bets  on  tlie  safety  of  the  property  insured,  or  on  the  duration  of  the 
life,  as  the  case  may  be.  In  the  latter  case  the  contract  may  be  valid, 
but  it  is  nevertheless  a  wager.  ^* 

At  common  law  in  England,  over  a  century  ago,  wagers  on  almost 
all  subjects  were  enforceable.  Gradually  the  courts,  finding  that  friv- 
olous and  indecent  matters  were  sometimes  brought  before  them  for 
decision,  established  a  rule  that  a  wager  would  not  be  enforced  if  it 
led  to  indecent  evidence,  or  was  calculated  to  injure  or  pain  a  third 
person,  and  in  some  cases  general  notions  of  public  policy  were  intro- 
duced to  the  effect  that  any  wager  which  tempted  a  man  to  offend 
against  the  law  was  illegal.®'' 

Aside  from  these  cases,  wagers  continued  to  be  enforced  in  England, 
and  have  been  enforced  in  many  of  our  states.  ®^  In  other  states,  the 
courts  have  held  all  wagering  contracts  on  matters  in  which  the  parties 
have  no  interest  illegal,  as  being  contrary  to  public  policy.*' 

8*  Anson,  Cont.  (4th  Ed.)  174-176. 

8B  See  Gilbert  v.  Sykes,  16  East,  150;  Hartley  v.  Rice,  10  East,  22;  Good  v. 
Elliott,  8  Term  R.  693;  Eltham  v.  Kingsman,  1  Barn.  &  Aid.  683;  Atherford 
V.  Beard,  2  Term.  R.  610;  Evans  v.  Jones,  5  Mees.  &  W.  77;  Ditchburn  v. 
Goldsmith,  4  Camp.  152.  And  see  Brogden  v.  Marriott,  3  Bing,  N.  C.  88;  Ram- 
loll  V.  Soojumnull,  6  Moore,  P.  C.  310;  Bunu  v.  Riker,  4  Johns.  (N.  Y.)  426, 
4  Am.  Dec.  292;  Rnst  v.  Gott,  9  Cow.  (N.  Y.)  169,  18  Am.  Dec.  497;  Hill  v. 
Kidd,  43  Cal.  615;   Vischer  v.  Yates,  11  Johns.  (N.  Y.)  21, 

86  Campbell  v.  Richardson,  10  Johns.  (N.  Y.)  406;  Good  v.  Elliott,  3  Term 
R.  693 ;  Clendining  v.  Church.  3  Gaines  (N.  Y.)  141 ;  WINCHESTER  v.  NUT- 
TER, 52  N.  H.  507,  13  Am.  Kep.  93;  Dewees  v.  Miller,  5  Har.  (Del.)  347;  Stod- 
dard V.  Martin,  1  R.  I.  1,  19  Am.  Dec.  643;  Buchanan  v.  Insurance  Co.,  6  Cow. 
(N.  Y.)  318;  Wheeler  v.  Spencer,  15  Conn.  28;  Johnston  v.  Russell,  37  Cal.  670; 
Wroth  V.  Johnson,  4  Har.  &  McH.  (Md.)  284;  Cothran  v.  Ellis,  125  111.  496, 
16  N.  E.  646;  Treuton  Mut.  Life  &  Fire  Ins.  Co.  v.  Johnson,  24  N.  J.  Law, 
576;  Wootan  v.  Hasket,  1  Nott  &  McC.  (S.  C.)  180;  Kirkland  v.  Randon,  8 
Tex.  10,  58  Am.  Dec.  94.  Wager  as  to  sliape  of  earth,  HAMPDEN  v.  WALSH, 
1  Q.  B,  Div.  189;  as  to  weight  of  hog,  Mulford  v.  Bowen,  9  N.  J.  Law,  315; 
as  to  result  of  past  election  in  another  state,  Smith  v.  Smith,  21  111.  244,  74 
Am.  Dec.  100;  as  to  time  within  whieli  railroad  would  be  completed,  Beadles 
V.  Bless,  27  111.  320,  81  Am.  Dec.  231;  Johnson  v.  Fall,  6  Cal.  359,  65  Am. 
Dec.  518. 

8T  HARVEY  V.  MERRILL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am, 
St.  Rep.  159;  Irwin  v.  Williar,  110  U,  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225; 
Amory  v.  Gilmau,  2  Mass.  1;  LOVE  v.  HARVEY,  114  Mass.  80;  Perkins  v, 
Eaton,  3  N.  H.  152;  W^est  v.  Holmes,  26  Vt.  530;  WINCHESTER  v.  NUT- 
TER, 52  N.  H.  507,  13  Am.  Rep.  93;  Wheeler  v,  Spencer,  15  Conn.  28;  Lewis 
V.  Littlefield,  15  Me.  233;  Stoddard  v,  Martin,  1  R.  I.  1,  19  Am.  Dec.  643;  Col- 
lamer  V.  Day,  2  Vt.  144;  Edgell  v,  McLaughlin,  6  Whart.  (Pa.)  176,  36  Am. 
Dec.  214;  Thomas  v.  Croniso,  16  Ohio,  54;  Lucas  v.  Harper,  24  Ohio  St.  328; 
BERNARD  v.  TAYLOR,  23  Or.  416,  31  Pac.  968,  18  L.  R.  A.  859,  37  Am.  St. 
Rep.  693;  Rice  v.  Gist,  1  Strob.  (S.  C.)  82;  Wilkinson  v.  Tousley,  16  Minn, 
299  (Gil.  263),  10  Am.  Rep.  139;  Eldred  v.  Malloy,  2  Colo.  320.  20  Am.  Rep. 
752;  Pabst  Brewing  Co.  v,  Liston,  80  Minn.  473,  83  N,  W,  448,  81  Am.  St. 
Rep.  275. 


§  153)  AGREEMENTS   IN   VIOLATION   OF   POSITIVE   LAW.  277 

There  are  now,  both  in  England  ^*  and  in  tliis  country,  statutes  cov- 
ering the  subject.  There  is  so  much  difference  in  the  statutes  of  the 
different  states  that  it  would  be  impracticable  to  attempt  to  give  them. 
It  is  sufficient  to  say  that  in  almost  all  the  states,  if  not  in  all,  the  stat- 
utes malce  all  gambling  contracts  either  void,  or  both  illegal  and  void. 

Satne — Offer  of  Premium  or  Reward. 

Neither  under  the  common  law  nor  under  the  statutes  against  gam- 
ing, betting,  and  wagers  is  the  bona  fide  offer  of  premiums  or  purses 
on  horse  races  or  other  legitimate  competitions  illegal,  and  it  is  imma- 
terial that  the  competitors  are  required  to  pay  an  entrance  fee  before 
they  are  allowed  to  complete,  and  that  these  fees  go  to  make  up  in 
part  the  premium  or  purse  offered.**® 

Same — Contracts  of  Insurance. 

At  conmion  law,  in  England,  contracts  of  insurance,  like  other 
wagers,  were  vaUd  though  the  assured  had  no  interest  whatever  in 
the  property  or  the  life  insured ;  '*"  and  the  English  doctrine,  as  we 
have  seen,  has  been  recognized  in  a  few  of  our  states."^  Probably  in 
most  of  our  states,  however,  the  doctrine  has  been  repudiated,  and  it 
has  been  held,  independently  of  any  statute,  that  contracts  of  insurance 
with  a  person  who  has  no  interest  in  the  property  or  life  are  mere 
gambling  transactions,  and  are  void.®^  The  subject  is  now  very  gen- 
erally dealt  with  by  statute  both  in  England  and  with  us,  so  that  there 
is  seldom  any  occasion  to  look  to  the  common  law.  By  these  statutes, 
any  contract  of  marine,  fire,  or  life  insurance  is  declared  void  unless 
the  assured  has  an  insurable  interest. 

88  Anson,  Cont.  (Sth  Ed.)  189  et  seq.  Some  of  the  earlier  English  statutes 
have  in  this  country  been  regarded  as  part  of  the  common  law.  Emerson  v. 
Townsend,  73  Md.  224,  20  Atl.  984. 

89  Porter  v.  Day,  71  >Yls.  290,  37  N.  W.  259.  And  see  Harris  v.  White,  81 
N.  Y.  532;  Misuer  v.  Knapp,  13  Or.  135,  9  Pac.  65,  57  Am.  Rep.  6;  Belief 
V.  Society,  57  Iowa,  481,  10  N.  W.  872;  Alvord  v.  Smith,  63  Ind.  58;  People 
T.  Fallon,  152  N.  Y.  12,  46  N.  E.  296,  37  L.  R.  A.  227,  57  Am.  St.  Rep.  492; 
Hankins  v.  Ottinger,  115  Cal.  454,  47  Pac.  254,  40  L.  R.  A.  76;  Wilkinson  v. 
Stitt,  175  Mass.  581,  56  N.  E.  830.  In  some  states  the  offer  of  such  rewards 
or  premiums  is  prohibited  in  certain  cases.  Brouson  Agrieultm'al  &  B.  Ass'n 
V.  Ramsdell,  24  Mich.  441.  It  is  otherwise  where  the  offer  of  a  premium  is  a 
mere  subterfuge  to  cover  a  bet;  as  where  the  owners  of  horses  make  up  a 
purse,  and  put  it  in  the  hands  of  a  third  person  to  pay  to  the  one  of  them  whose 
horse  shall  win.     Gibbons  v.  Gouverueur,  1  Denio  (N.  Y.)  170. 

8  0  Kulen  Kemp  v.  Vigne,  1  Term  R.  304;    Dean  v.  Dicker,  2  Strange,  1250. 

81  Clendiniiig  v.  Church,  3  Gaines  (N.  Y.)  141 ;  Buchanan  v.  Insurance  Co.,  6 
Cow.  (N.  Y.)  318  ;  Trenton  Mut.  Life  &  Fire  Ins.  Co.  v.  Johuson,  24  N.  J.  Law,  576. 

0  2  Stevens  v.  Warren,  101  Mass.  564;  WABNOCK  v.  DAVIS,  104  U.  S. 
775,  26  L.  Ed.  924;  Amory  v.  Gilman.  2  Mass.  1;  Loomis  v.  Insurance  Co.,  6 
Gray  (Mass.)  396;  Bersch  v.  Insurance  Co.,  28  Ind.  64;  Bevin  v.  Insurance 
Co.,  23  Conn.  244;  Sawyer  v.  Mayhew,  51  Me.  398;  Sweeney  v.  Insurance  Co., 
20  Pa.  337;  Fowler  v.  Insurance  Co.,  26  >\  Y.  422;   ante,  p. 276. 


278  LEGALITY   OF   OBJECT.  (Ch.  8 

The  question  as  to  what  amounts  to  an  insurable  interest  is  one 
more  pecuUarly  for  a  work  on  insurance,  and  it  would  be  impracti- 
cable for  us  to  go  into  it.  In  the  case  of  marine  or  fire  insurance  it 
is  sufficient  to  say  that  if  a  person  has  any  interest  in  the  vessel,  cargo, 
or  other  property,  legal  or  equitable,  so  that  he  would  suffer  a  loss  if 
it  should  be  destroyed,  he  has  an  insurable  interest.®^  In  the  case 
of  life  insurance  it  has  been  said  that  "all  which  it  seems  necessary  to 
show  in  order  to  take  the  policy  out  of  the  objection  of  being  a  wager 
policy  is  that  the  insured  has  some  interest  in  the  life  of  the  cestui 
que  vie;  that  his  temporal  affairs,  his  just  hopes,  and  well-grounded 
expectations  of  support,  of  patronage,  and  advantage  in  life  will  be 
impaired;  so  that  the  real  purpose  is  not  a  wager,  but  to  secure  such- 
advantages  supposed  to  depend  on  the  life  of  another."  ^* 

Same — Futures.    b^^Xr^"-'  \a  ^-*-  ^-^A  Ux..'-*"^^" 

An  agreement  for  the  sale  of  stocks,  grain,  or  any  other  commodity 
is  a  gambling  contract  where  the  parties  do  not  intend  an  actual  deliv- 
ery, but  agree  that  at  the  time  fixed  for  delivery,  they  shall  settle  by 
one  of  them  paying  the  other  the  difference  between  the  price  agreed 
upon  and  the  market  price  at  the  time  of  delivery.  This  is  a  mere  bet 
or  speculation  on  the  rise  and  fall  of  the  price  of  the  article,  and  is 
illegal,  not  only  under  the  statutes,  but  in  most  states  even  indepen- 
dently of  any  statute.^^     The  law  on  this  subject  was  thus  stated  in  a 

»3  1  Bid.  Ins.  §  155  et  seq. 

8  4  Loomis  V.  Insurance  Co.,  6  Gray  (Mass.)  398;    1  Bid.  Ins.  §  186  et  seq. 

9  5  HARVEY  V.  MERRILL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am. 
St.  Rep.  159;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225; 
Gregoi-y  v.  Wendell,  39  Mich.  337,  33  Am.  Rep.  390;  Burt  v.  Meyer,  71  Md. 
467,  18  Atl.  796;  Brua's  Appeal,  55  Pa.  294;  Kingsbm-y  v.  Kirwan,  77  N.  Y. 
612;  Whitesides  v.  Hunt,  97  Ind.  191,  49  Am.  Rep.  441;  Crawford  v.  Spencer, 
92  Mo.  498,  4  S.  W.  713,  1  Am.  St.  Rep.  745;  Everingham  v.  Meigban,  55  Wis. 
354,  13  N.  W.  269;  White  v.  Barber,  123  U.  S.  392,  8  Sup.  Ct  221,  31  L.  Edv 
243;  Hatch  v.  Douglass,  48  Conn.  116,  40  Am.  Rep.  154;  Dunn  v.  Bell,  85 
Tenn.  581,  4  S.  W.  41;  Pickering  v.  Cease,  79  111.  328;  Flagg  v.  Gilpin,  17 
R.  I.  10,  19  Atl.  1084;  Lawton  v.  Blitch,  83  Ga.  663,  10  S.  E.  353;  Lester  v. 
Buel,  49  Ohio  St.  240,  30  N.  E.  821,  34  Am.  St.  Rep.  556;  MOHR  v.  MIESEN, 
47  Minn.  228,  49  N.  W.  862;  Wagner  v.  Hildebrand,  187  Pa.  136,  41  Atl.  34; 
Johnston  v.  Miller,  67  Ark.  172,  53  S.  W.  1052;  Counselman  v.  Reichart.  103 
Iowa,  430,  72  N.  W.  490;  Jamieson  v.  Wallace,  167  111.  388,  47  N.  E.  762,  59 
Am.  St.  Rep.  302;  Ponder  v.  Jerome  Hill  Cotton  Co.,  100  Fed.  373,  40  C.  C. 
A.  416 ;  Clews  v.  Jamieson,  96  Fed.  648,  38  C.  C.  A.  473  r  Morris  v.  Western 
Union  Telegraph  Co.,  94  Me.  423,  47  Atl.  926;  Atwater  v.  Manville,  106  Wis. 
64,  SI  N.  W.  985;  Rogers  v.  Miimott,  59  Neb.  759,  82  N.  W.  21.  And 
see  cases  cited  in  notes  345,  347,  infra.  Such  transactions  are  not  regarded 
as  contrary  to  public  policy  in  England,  but  ai'e  held  to  be  gaming  and 
wagering  transactions  within  the  meaning  of  the  statute  prohibiting  such 
transactions.  THACKER  v.  HARDY,  4  Q.  B.  Div.  085.  It  has  been  held, 
however,  that  this  class  of  contracts  were  not  gaming  contracts  within 
the  meaning  of   statutes  avoiding   instruments  in  the   hands  of  bona  Me 


§  153)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW.  279 

late  Massachusetts  case :  "If,  in  a  formal  contract  for  the  purchase 
and  sale  of  merchandise  to  be  delivered  in  the  future  at  a  fixed  price, 
it  is  actually  the  agreement  of  the  parties  that  the  merchandise  shall 
not  be  delivered  and  the  price  paid,  but  that,  when  the  stipulated  time 
for  performance  arrives,  a  settlement  shall  be  made  by  a  payment  in 
money  of  the  difiference  between  the  contract  price  and  the  market 
price  of  the  merchandise  at  that  time,  this  agreement  makes  the  con- 
tract a  wagering  contract.  If,  however,  it  is  agreed  by  the  parties 
that  the  contract  shall  be  performed  according  to  its  terms  if  either 
party  requires  it,  and  that  either  party  shall  have  a  right  to  require  it, 
the  contract  does  not  become  a  wagering  contract  because  one  or  both 
of  the  parties  intend,  when  the  time  for  performance  arrives,  not  to 
require  performance,  but  to  substitute  therefor  a  settlement  by  the  pay- 
ment of  the  difference  between  the  contract  price  and  the  market  price 
at  that  time.  Such  an  intention  is  immaterial,  except  so  far  as  it  is 
made  a  part  of  the  contract,  although  it  need  not  be  made  expressly 
a  part  of  the  contract.  To  constitute  a  wagering  contract,  it  is  suffi- 
cient, whatever  may  be  the  form  of  the  contract,  that  both  parties 
understand  and  intend  that  one  party  shall  not  be  bound  to  deliver  the 
merchandise  and  the  other  to  receive  it  and  to  pay  the  price,  but  that 
a  settlement  shall  be  made  by  the  payment  of  the  difference  in  prices."  ^® 
This  intention  must  be  common  to  both  parties.  If  one  of  them  in- 
tends a  bona  fide  sale,  and  actual  delivery  if  it  shall  be  required,  he 
may  enforce  the  contract,  though  the  other  party  may  have  intended  a 
wager  on  future  prices. ^^     The  fact  that  the  seller  has  not  the  article 

holders  if  given  on  a  gaming  consideration.  Shaw  v.  Clark,  49  Mich.  384, 
13  X.  W.  786,  43  Am.  Rep.  474;  Third  Nat.  Bank  v.  HaiTison  (C.  C.)  10 
Fed.  243.  But  see,  contra,  THACKER  v.  HARDY,  4  Q.  B.  Div.  685;  Cunning- 
ham v.  Bank,  71  Ga.  400,  51  Am.  Rep.  266;  Grizewood  v.  Blane,  11  C.  B.  526; 
Lyons  v.  Hodgen,  90  Ky.  280,  13  S.  W.  1076.  That  they  are  wagers  within 
the  meaning  of  a  statute,  see  McGrew  v.  Produce  Exchange,  85  Tenn.  572,  4 
S.  W.  38,  4  Am.  St.  Rep.  771. 

96  HARVEY  V.  MERRILL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15 
Am.  St.  Rep.  159.  And  see  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403. 
But  if  the  circumstances  show  that  tlie  transaction  was  a  speculation  only, 
and  tliat  no  delivery  was  intended,  it  is  void,  notwithstanding  a  rule  of  the 
exchange  that  actual  delivery  may  be  exacted.  Beadles  v.  McElrath,  85 
Ky.  230,  3  S.  W.  152. 

97  PIXLEY  V.  BOYNTON,  79  111.  351;  Whitesides  v.  Hunt,  97  Ind.  191. 
49  Am.  Rep.  441;  Bangs  v.  Hornick  (C.  C.)  30  Fed.  97;  Jones  v.  Shale,  34 
Mo.  App.  302;  Scaulon  v.  Warren,  169  111.  142,  48  N.  E.  410;  Donovan  v. 
Daiber,  124  Mich.  49,  82  N.  W.  848.  Otherwise  by  some  statutes.  Harvey  v. 
Doty,  54  S.  C.  382,  32  S.  E.  501.  So  of  the  contract  between  broker  and  prin- 
cipal. If  the  broker  is  privy  to  the  unlawful  intention  of  the  parties,  his  con- 
tract with  his  principal  is  illegal,  and  he  cannot  recover  his  commissions,  etc.; 
but  if  he  is  not  privy  thereto,  his  contract  is  legal.  Irwin  v.  Williar,  110  U.  S. 
4!.H),  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Bibb  v.  Allen.  149  U.  S.  498,  13  Sup.  Ct.  950, 
87  L.  Ed.  819;    HARVEY  v.  MERRILL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A. 


280  LEGALITY   OF   OBJECT.  (Ch.  8 

sold  at  the  time  of  the  contract  does  not  render  the  contract  void.  It 
is  valid  if  an  actual  delivery  is  intended,  though  he  is  to  buy  the  article 
in  the  market  at  the  time  of  delivery,  and  though  a  margin  may  have 
been  deposited  as  security."^' 

Lotteries. 

In  England,  and  in  most,  if  not  all,  of  our  states,  lotteries  are  pro- 
hibited by  statute.  In  Webster's  Dictionary  a  "lottery"  is  defined  to 
be  "the  distribution  of  prizes  by  lot  or  chance,"  and  this  definition  has 
been  expressly  approved  by  some  of  the  courts.^^  In  an  English  case 
the  proprietor  of  a  journal  had  advertised  a  "missing  word  competi- 
tion," the  scheme  of  which  was  that  persons  should  guess  upon  the 
word  omitted  in  a  published  paragraph,  accompanying  their  guess  by 
a  fee,  the  money  so  received  to  be  distributed  among  the  successful 
competitors.  The  proprietor,  after  receiving  the  money,  refused  to 
distribute  it,  and  suit  was  brought  against  him  by  a  successful  com- 
petitor. It  was  held  that  the  transaction  was  a  lottery,  as  the  distri- 
bution was  to  take  place  by  chance,  and  that  the  action  could  not  be 
maintained,^"** 

200,  15  Am.  St  Rep.  159 ;  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403 ;  MOHR 
V.  MIESEN,  47  Minn.  228,  49  N.  W.  802. 

08  story  V.  Solomon,  71  N.  Y.  420;  Appleman  v.  Fisher,  34  Md.  540;  Irwin 
V.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Bibb  v.  Allen,  149  U. 
S.  481,  13  Sup.  Ct  950,  37  L.  Ed.  819;  GregoiT  v.  Wattowa,  58  Iowa,  711,  12 
N.  W.  726;  Cole  v.  Milmine,  88  111.  349;  Wall  v.  Schneider,  59  Wis.  352,  18 
N.  W.  4-13,  48  Am.  Rep.  .520;  Wollcott  v.  Heath,  78  111.  433;  Kahn  v.  Walton, 
46  Ohio  St  195,  20  N.  E.  203;  Forsyth  Mfg.  Co.  v.  Castlen,  112  Ga.  199,  37 
S.  E.  485,  81  Am.  St.  Rep.  28.  Parol  evidence  is  always  admissible  to  show 
what  was  the  real  intention.  Clarke  v.  Foss,  7  Biss.  540,  Fed.  Cas.  No. 
2,852;  AVatte  v.  Wickersham,  27  Neb.  457,  43  N.  W.  259;  Gaw  v.  Bennett, 
153  Pa.  247,  25  Atl.  1114,  34  Am.  St  Rep.  699;  Hentz  v.  Jewell  (C.  C.)  20 
Fed.  592. 

99  BARCLAY  V.  PEARSON  [1893]  2  Ch.  154;  Taylor  v.  Smetten,  11  Q. 
B.  Div.  210. 

100  BARCLAY  v.  PEARSON  [1893]  2  Ch.  154.  And  see,  as  to  what  con- 
stitutes a  lottery,  Jackson  Steel  Nail  Co.  v.  Marks,  4  Ohio  Civ.  Ct  R.  343; 
Caiuinada  v.  Hulton,  64  I^aw  T.  572;  gift  enterprises.  State  v.  Boneil,  42  La. 
Ann.  1110,  8  South.  298,  10  L.  R.  A.  60,  21  Am.  St  Rep.  413;  Long  v.  State, 
73  Md.  527,  21  Atl.  6S3.  12  L.  R.  A.  89,  25  Am.  St.  Rep.  606;  Id.,  74  Md.  565, 
22  Atl.  4,  12  L.  R.  A.  425,  28  Am.  St  Rep.  268;  People  v.  Gillson,  109  N.  Y. 
389,  17  N.  E.  843,  4  Am.  St.  Rep.  465;  merchant  tailor  clubs,  State  v.  Moren, 
48  Minn.  555,  51  N.  W.  618;  prizes  to  stimulate  trade,  Davenport  v.  City 
of  Ottawa,  54  Kan.  711,  39  Pac.  708,  45  Am.  St.  Rep.  303;  Lynch  v.  Rosenthal, 
144  Ind.  86,  42  N.  E.  1103,  31  L.  R.  A.  835,  55  Am.  St  Rep.  168;  State  v.  In- 
vestment Co.,  (54  Ohio  St.  28.3,  60  N.  E.  220,  52  L.  R.  A.  530.  83  Am.  St.  Rep. 
754.  A  law  prohibiting  the  giving  of  trading  stamps  held  violative  of  liberty 
guarantied  by  constitution,  since  transaction  prohibited  not  a  lottery.  State 
v.  Ualton,  22  R.  I.  77,  46  Atl.  234.  48  L.  R.  A.  775,  84  Am.  St  Rep.  818. 
See,  also,  Ex  parte  McKenna,  126  Cal.  429,  58  Pac.  916. 


§§  lo4r-lo5)      AGREEMENTS   CONTRARY    TO   PUBLIC   POLICY.  281 

A  distribution,  however,  does  not  constitute  a  lottery  where  no  con- 
sideration  is  paid,  directly  or  indirectly,  for  the  right  to  participate.^"^  , 

AGREEMENTS  CONTRARY  TO  PUBLIC  POLICY. 

154.  Any  agreement  which  is  contrary  to  the  policy  of  the  law,  or  pub- 

lic policy,  because  of  its  mischievous  nature  or  tendency,  is  ille- 
gal and  void,  though  the  acts  contemplated  may  not  be  expressly 
prohibited  either  by  the  common  law  or  by  statute. 

155.  The    test    of   public    policy   must    be    applied   in    each    case    as    it 

arises,  and  therefore  agreements  which  have  been  or  may  be 
declared  contrary  to  public  policy  cannot  be  exactly  classified. 
The  most  general  are: 

(a)  Agreements  tending  to  injure  the  public  service. 

(b)  Agreements    involving    or   tending   to    the    corruption   of   private 

citizens  xpith  reference  to  public  matters. 

(c)  Agreements  tending  to  pervert  or  obstruct  public  justice. 

(d)  Agreements   tending  to   encourage  litigation. 

(e)  Agreements  of  immoral  tendency. 

(f)  Gambling  transactions. 

(g)  Agreements  tending  to  induce  fraud  aoid  breach  of  trust. 

(h)  Agreements  affecting  the  freedom  or  security  of  marriage,  or 
otherwise  in  derogation  of  the  marriage  relation. 

(i)    Agreements  in  derogation  of  the  parental  relation. 

(j)  Agreements  in  unreasonable  restraint  of  trade,  including  combi- 
nations to  prevent  competition,  control  prices,  and  create  mo- 
nopolies. 

(k)  Agreements  exempting  a  person  or  corporation  from  liability 
for  negligence. 

There  are  many  things  which  the  law  does  not  prohibit  in  the  sense 
of  attaching  penalties,  but  which  are  so  mischievous  in  their  nature 
and  tendency  that,  on  grounds  of  public  policy,  they  cannot  be  ad- 
mitted as  the  subject  of  a  valid  contract.  It  is  clearly  to  the  interest 
of  the  public,  however,  that  persons  should  not  be  unnecessarily  re- 
stricted in  their  freedom  to  make  their  own  contracts.  "You  have 
this  paramount  public  policy  to  consider:  that  you  are  not  lightly  to 
interfere  with  the  freedom  of  contract."  ^"^  The  interests  of  the  public, 
however,  do  require  that  there  shall  be  some  restrictions  on  the  free- 
dom of  persons  to  enter  into  contracts.  "The  common  law  will  not 
permit  individuals  to  oblige  themselves  by  a  contract  either  to  do  or 
not  to  do  anything  Avhen  the  thing  to  be  done  or  omitted  is  in  any 
degree  clearly  injurious  to  the  public."  ^°' 

101  Yellowstone  Kit  v.  State,  SS  Ala.  196,  7  South.  3.'«5,  7  L.  R.  A.  599,  16 
Am.  St.  Rep.  38;  Cross  v.  People.  18  Colo.  321,  32  Pac.  821,  36  Am.  St.  Rep. 
292. 

102  Printing  &  Numerical  Registering  Co.  v.  Sampson,  L.  R.  19  Eq.  462, 
per  Jessel,  M.  R. 

103  West  Virginia  Transp.  Co.  v.  Pipe-Line  Co.,  22  W.  Va.  600,  46  Am.  Rep. 
527. 


282  LEGALITY   OF  OBJECT.  (Ch.  8 


SAME— AGREEMENTS  TENDING  TO  INJURE  THE  PUBLIC 

SERVICR 

156.   Among  the  agreements  xrliicli  are  illegal  as  tending  to  injure  the 
public  service  may  be  mentioned — 

(a)  Agreements  for  the  sale  of,  or  other  traffic  in,  a  public  office,  or 

its  emoluments. 

(b)  Agreements  by  public  officers  for  greater  pay  than  is  fixed  by  law^ 

for  performance  of  official  duty;  or  for  less  pay  where  the 
services  are  yet  to  be  performed. 

(c)  Assignment  of  his  future  salary,  and,  under  some  circumstances, 

of  his  pension,  by  a  public  officer. 

(d)  Agreements   to   influence   legislation  by   personal   solicitation   of 

the  legislators,  or  other  objectionable  means. 

(e)  Agreements  to  procure  administrative  action  by  public  officers  by 

corrupt  means.  Some,  but  not  all,  courts  hold  that  any  agree- 
ment by  a  third  person,  for  a  compensation,  to  procure  such  ac- 
tion, is  illegal,  because  of  its  tendency  to  introduce  corrupt 
means. 

(f)  Agreements  by  public  or  quasi  public  corporations  ivhich  inter- 

fere ivith  their  performance  of  the  duties  \phich  they  oive  to 
the  public. 

As  the  public  has  an  interest  in  the  proper  performance  of  their  duty 
by  pubhc  officers,  and  would  be  prejudiced  by  agreements  tending  to 
impair  an  officer's  efficiency,  or  otherwise  interfere  with  the  due  exe- 
cution of  the  duties  of  the  office,  such  agreements  are  contrary  to  public 
policy  and  void. 

Traffic  in  Public  Offices. 

As  stated  by  Greenhood,*"*  therefore,  "any  contract  to  appoint  one 
to  public  office,^*"*  or  involving  the  sale  of  a  public  ^^^  or  quasi  pub- 
lic ^"^  office,  or  to  do  anything  in  consideration  of  the  promisee  ex- 

104  Greenh.  Pub.   Pol.  rule  287,  p.  3c5S. 

105  Robertson  v.  Robinson,  ti5  Ala.  GIO,  39  Am.  Rep.  17;  Hager  v.  Catlln. 
18  Him  (N.  Y.)  448;  Stout  v.  Ennis,  28  Kan.  70G.  A  contract  by  an  officer, 
after  election,  to  employ  a  person  as  his  deputy  may  be  valid.  Stout  v. 
Ennis.  supra. 

106  Hall  V.  Gavitt,  18  Ind.  300;  Card  v.  Hope,  2  Barn.  &  C.  GGl;  Proprietors 
of  Cardigan  v.  Page,  6  N.  H.  183;  Town  of  Meredith  v.  Ladd,  2  N.  H.  517; 
Love  V.  Buckner,  4  Bibb  (Ky.)  506;  Groton  v.  Inhabitants  of  Waldoborough, 
11  AEe.  30(5,  26  Am.  Dec.  530;  Martin  v.  Royster,  8  Ark.  74;  Outon  v.  Rodes, 
3  A.  K.  Marsh.  (Ky.)  432,  13  Am.  Dec.  193;  Engle  v.  Chipman,  51  Mich. 
524,  16  N.  W.  886;  Alvord  v.  Collin,  20  Pick.  (]klass.)  at  page  428.  The  leg- 
islature may  provide  for  sale  of  an  office.  Town  of  Thetford  v.  Hubbard, 
22  Vt.  440. 

lOT  Blatcliford  v.  Preston,  8  Term  R.  89;  Card  v.  Hope,  2  Barn.  &  C.  661. 


I 


§  156)  AGREEMENTS   CONTRARY   TO    PUBLIC    POLICY.  283 

changing  office  with,"*  or  securing  an  office  for  "^  the  promisor,  or 
recommending  him  for  such  office, ^^"  or  resigning  any  office,^^^  is 
void." 

As  tending  to  injure  the  pubHc  service  may  also  be  mentioned  agree- 
ments by  which  a  person  not  occupying  a  pubHc  office  secures  to  him- 
self all  or  any  part  of  its  benefits  or  emoluments.^^^  Other  agreements 
to  which  this  principle  applies  are  agreements  by  a  public  officer  to 
pay  another  for  performing  the  duties  of  his  office  for  him,  for  an 
officer  has  no  authority  to  delegate  his  duties  to  another  ;^^'  but  this 
does  not  apply  where  an  officer  merely  employs  a  deputy  or  other  pri- 
vate person  to  assist  him."* 

Agreements  Affecting  the  Compensation  of  Public  Officers. 

As  we  have  seen,  a  promise  to  pay  a  public  officer  for  performing 
duties  which  he  is  required  by  law  to  perform  without  such  com- 
pensation, or  to  pay  him  more  than  the  fees  fixed  by  law,  is  void  for 
want  of  consideration.^^ ^  Such  contracts  are  also  illegal  as  being 
contrary  to  public  policy.^^*     "The  rewards  of  officers,"  it  has  been 

10  s  Stroud  V.  Smith,  4  Houst  (Del.)  448. 

109  Gray  v.  Hook,  4  N.  Y.  449;  Law  v.  Law,  3  P.  Wms.  391;  MEGUIRE 
V.  CORWINE,  101  U.  S.  Ill,  25  L.  Ed.  S99;  Nichols  v.  Mudgett,  32  Vt.  546; 
Martin  v.  Wade,  37  Cal.  1G8;  Huuter  v.  Nolf,  71  Pa.  282;  Morse  v.  Ryau, 
26  Wis.  356;    Harris  v.  Chamberlain,  126  Mich.  2S0,  85  N.  W.  728. 

110  Hartwell  v.  Hartwell,  4  Ves.  811;  Edwards  v.  Randle,  63  Ark.  318,  38 
S.  W.  343,  36  L.  R.  A.  174,  58  Am.  St.  Rep.  108. 

111  Eddy  V.  Capron,  4  R.  I.  394,  67  Am.  Dec.  541;  Meacham  v.  Dow,  32 
Vt.  721;  Basket  v.  Moss,  115  N.  C.  4-18,  20  S.  E.  733,  48  L.  R.  A.  842,  44 
Am.  St.  Rep.  463.     And  see  Forbes  v.  McDonald,  54  Cal.  98. 

112  Greenh.  Pub.  Pol.  rule  293,  p.  349.  An  agreement  by  which  one  party 
stipulates  to  pay  the  other  a  proportion  of  the  fees  and  emoluments  of  a 
pixblic  office  which  he  is  seeking,  in  consideration  that  that  other  will  aid 
him  in  obtaining  it,  is  void.  Gray  v.  Hook,  supra.  And  see  Deyoe  v.  Wood- 
worth,  144  N.  Y.  448,  39  N.  E.  375. 

113  Engle  v.  Chipman,  51  Mich.  524,  16  N.  W.  886;  Schloss  v.  Hewlett,  81 
Ala.  266,  1  South.  263. 

13  4  Price  V.  Caperton,  1  Duv.  (Ky.)  207. 

1 1 5  Ante,   p.  127. 

118  Weaver  v.  Whitney,  1  Hopk.  Ch.  (N.  Y.)  13;  Preston  v.  Bacon,  4  Conn. 
471;  Neustadt  v.  Hall,  58  111.  172;  Trundle's  Adm'r  v.  Riley,  17  B.  Mon.  (Ky.) 
396;  GILIMORE  v.  LEWIS,  12  Ohio,  281;  Brown  v.  Bank,  137  Ind.  655,  37 
N.  B.  158,  24  L.  R.  A.  206;  Adams  Co.  v.  Hunter,  78  Iowa,  328,  43  N.  W. 
208,  6  L.  R.  A.  615;  Foley  v.  Piatt,  105  Mich.  635,  63  N.  W.  520;  ante,  p. 
127,  and  cases  there  cited.  Bond  of  indemnity  given  a  sheriff  to  induce 
him  to  do  what  he  was  required  to  do  without  it.  Mitchell  v.  Vance.  5  T. 
B.  Mon.  (Ky.)  528,  17  Am.  Dec.  96.  Bond  indemnifying  officer  against  loss 
for  omitting  to  execute  process.  Harrington's  Adm'r  v.  Crawford,  136  Mo. 
467,  38  S.  W.  SO,  35  L.  R.  A.  477,  58  Am.  St.  Rep.  653.  A  public  officer  is  not 
entitled  to  reward  offered  for  the  arrest  which  it  was  his  duty  to  make  \\'ith- 
out  pay.  SMITH  v.  WHILDIN,  10  Pa.  39,  49  Am.  Dec.  572;  GIL:M0RE 
v.  LEWIS,  12  Ohio,  281;   POOL  v.  CITY  OF  BOSTON,  5  Gush.  (Mass.)  219; 


284  LEGALITY   OF   OBJECT.  (Ch.  8 

said,  "are  established  by  law.  Their  services  are  to  be  performed 
for  those  legal  rewards ;  and  other  private  rewards  for  acts  which 
are  required  from  them  *  *  *  rnust  be  regarded  as  corrupt  and 
illegal  exactions."  ^^^  The  rule  does  not  apply  so  as  to  prevent  an 
officer  from  recovering  on  a  promise  to  pay  him  for  doing  more  than  he 
is  required  by  law  to  do.^^® 

It  has  also  been  held  that  an  agreement  by  a  public  officer,  before 
performance  of  services,  to  accept  less  than  the  fees  fixed  by  law,  is 
against  public  policy.^ ^® 

Assignment  of  Salary  or  Pension  by  OiUcer. 

The  rule  also  applies  to  the  assignment  of  their  salaries  by  public 
officers.  One  of  the  reasons  given  by  an  English  judge  was  that  "it 
is  fit  that  the  public  servants  should  retain  the  means  of  a  decent  sub- 
sistence, without  being  exposed  to  the  temptations  of  poverty."  ^^^  It 
is  not  regarded  as  contrary  to  public  policy  for  an  officer  to  assign  his 
salary  after  it  has  become  due,  but  an  assignment  of  it  before  it  is 
due  is  void.  The  reason  is  that  an  officer  is  not  apt  to  be  as  efficient 
in  the  performance  of  his  duties  after  he  has  assigned  his  unearned 
salary.  ^'^^ 

So,  also,  the  assignment  of  a  pension  may  be  illegal  if  it  is  not 
granted  exclusively  for  past  services.  "Where  the  pension  is  granted, 
»iot  exclusively  for  past  services,  but  as  a  consideration  for  some  con- 
tinuing duty  or  service,  although  the  amount  of  it  may  be  influenced 

Stamper  v.  Temple,  6  Himiph.  (Tenn.)  113,  44  Am.  Dec.  2t)G;  Da  vies  v.  Bm-ns, 
5  Allen  (Mass.)  349. 

ii»  Weaver  v.  Whitney,   1  Hopk.   Ch.    (N.   Y.)  13. 

ii»  Ti-undle  v.  Riley,  17  B.  Mon.  (Ky.)  396;  McCandless  v.  Steel  Co.,  15? 
Pa.  139,  25  Atl.  579;  Carroll  v.  Tyler.  2  Har.  &  G.  (Md.)  57.  An  officer 
may  recover  a  reward  offered  for  apprehension  of  a  criminal,  If  It  was  no 
part  01*  his  duty  to  make  the  arrest.  Morrell  v.  Quarles,  35  Ala.  544;  Evans 
V.  Inhabitants  of  City  of  Trenton,  24  N.  J.  Law,  764. 

119  Hawkeye  Ins.  Co.  v.  Brainard,  72  Iowa,  130,  33  N.  W.  603;  Edgerly 
V.  Hale,  71  N.  H.  138,  51  Atl.  G79  (sheriff's  fee  for  service  payable  only 
If  action  successful).  Contra,  Bloom  v.  Hazzard.  104  Cal.  310,  37  Pac.  1037. 
Cf.  Peters  v.  City  of  Davenport,  104  Iowa,  625,  74  N.  W.  6. 

120  ^\e\\s  V.  Foster,  8  Mees.  &  W.  149. 

121  Bliss  v.  LaAvrence,  48  How.  Prac.  (N.  Y.)  22;  Id.,  58  N.  Y.  442,  17  Am, 
Rep.  273;  Bangs  v.  Dunn,  66  Cal.  72,  4  Pac.  963;  Bowery  Nat.  Bank  v.  Wil- 
son, 122  N.  Y.  478,  25  N.  E.  855,  9  L.  R.  A.  700,  19  Am.  St.  Rep.  507;  Schloss 
V.  Hewlett,  81  Ala.  266,  1  South.  263;  State  v.  Williamson,  118  Mo.  146,  23 
S.  W.  10.54,  21  L.  R.  A.  827,  40  Am.  St.  Rep.  358;  Field  v.  Chipley,  79  Ky. 
260,  42  Am.  Rep.  215;  National  Bank  of  Elpaso  v.  Fink,  86  Tex.  303,  24 
S.  W.  256,  40  Am.  St.  Rep.  883;  Brackett  v.  Blake,  7  Mete.  (Mass.)  335;  First 
Nat.  Bank  v.  State  (Neb.)  94  N.  W.  633.  Contra,  State  Bank  v.  Hastings. 
15  Wi.s.  78.  The  rule  applies  to  an  assignment  of  his  fees  by  an  executor 
before  they  are  ascertained  and  fixed  as  provided  by  statute.  In  re  Worth- 
ington.  66  Hun,  033,  22  N.  Y.  Supp.  19;  Id.,  141  N.  Y.  9,  35  N.  E.  929.  23  L. 
R.  A.   97. 


§  15(3)  AGREEMENTS   CONTKAKY   TO  PUBLIC   POLICY.  285 

by  the  length  of  service  which  the  party  has  already  performed,  it  is 
against  the  policy  of  the  law  that  it  should  be  assignable."  ^" 

Lobbying  Contracts. 

What  are  known  as  "lobbying  contracts"  also  fall  within  this  class 
of  illegal  agreements.  Any  agreement  to  render  services  in  procuring 
legislative  action,  either  by  congress  or  by  a  state  legislature  or  by  a 
municipal  council,  by  personal  solicitation  of  the  legislators  or  other 
objectionable  means,  is  contrary  to  the  plainest  principles  of  public 
policy,  and  is  void.^-^  "A  contract  for  lobby  services,"  it  is  said  in  a 
New  York  case,  "for  personal  influence,  for  mere  importunities  to  mem- 
bers of  the  legislature  or  other  official  body,  for  bribery  or  corruption, 
or  for  seducing  or  influencing  them  by  any  other  arguments,  persua- 
sions, or  inducements  than  as  directly  and  legitimately  bear  upon  the 
merits  of  the  pending  application,  is  illegal,  and  against  public  policy, 
and  void;"  ^^*  and  it  has  been  held  that  a  promise  to  pay  a  contingent 
fee  on  the  passage  of  a  bill  is  void,  because  such  a  fee  is  "a  direct  and 
strong  incentive  to  the  exertion  of  not  merely  personal,  but  sinister, 
influence  upon  the  legislature."  ^^^ 

122  Wells  V.  Foster,  8  Mees.  &  W.  149.  And  see  Bliss  v.  Lawrence,  58 
N.  Y.  422,  17  Am.  Rep.  273  (collecting  the  English  cases).  Act  Cong.  Feb. 
28,  1883,  c.  58,  §  2,  22  Stat.  432  [U.  S.  Comp.  St.  1901,  p.  3278],  makes  void 
any  "pledge,  mortgage,  sale,  assignment,  or  ti'ansfer  of  any  right,  claim,  or 
interest  in  any  pension."     See  Loser  v.  Board,  92  Mich.  633,  52  N.  W.  956. 

123  TKIST  V.  CHILD,  21  Wall.  441,  22  L.  Ed.  623;  Spalding  v.  Ewing, 
149  Pa.  375,  24  Atl.  219.  15  L.  R.  A.  727,  34  Am.  St.  Rep.  608;  Frost  v.  Bel- 
mont, 6  Allen  (Mass.)  152;  Rose  v.  Truax,  21  Barb.  (N.  Y.)  361;  Powers  v. 
Skinner,  34  Vt.  274,  SO  Am.  Dec.  677;  McBratney  v.  Chandler,  22  Kan.  692, 
SI  Am.  Rep.  213;  Cook  v.  Shipman,  24  111.  614;  Houlton  v.  Dunn,  60  Minn. 
26,  61  N.  W.  898,  30  L.  R.  A.  737,  51  Am.  St.  Rep.  493;  Colusa  County  r. 
Welch,  122  Cal.  428,  55  Pac.  243;  Hayward  v.  Manufacturing  Co.,  85  Fed. 
4,  29  C.  C.  A.  438.  "It  is  not  necessary  to  adjudge  that  the  parties  stipu- 
lated for  corrupt  action,  or  that  they  intended  that  secret  and  improper 
resorts  should  be  had.  It  is  enough  that  the  contract  tends  directly  to 
those  results.  It  furnishes  a  temptation  to  the  plaintiff  to  resort  to  corrupt 
means  or  improper  devices  to  influence  legislative  action.  It  tends  to  subject 
the  legislature  to  influences  destructive  of  its  character,  and  fatal  to  public 
confidence  in  its  action."  Mills  v.  Mills,  40  N.  Y.  .543,  100  Am.  Dec.  535. 
And  see  Veazey  v.  Allen,  173  N.  Y.  359,  <iy^  N.  E.  103,  62  L.  R.  A.  362. 

124  Bi'own  V.  Brown,  34  Barb.  533.  And  see  Sweeney  v.  McLeod,  15  Or. 
330,  15  I'ac.  275. 

123  Wood  V.  McCann,  6  Dana  (Ky.)  366.  And  see  Marshall  v.  Railroad 
Co.,  16  How.  314,  14  L.  Ed,  953;  Coquillard's  Adm'r  v.  Bearss,  21  Ind.  479, 
83  Am.  Dec.  362;  Harris  v.  Roofs  Ex'rs,  10  Barb.  (N.  Y.)  489;  Weed  v. 
Black,  2  MacArthur  (D.  C.)  268;  Chippewa  Valley  &  S.  Ry.  Co.  v.  Railway 
Co..  75  Wis.  224,  44  N.  W.  17,  6  L.  R.  A.  601;  Critchfleld  v.  Paving  Co.,  174  111. 
466,  51  N.  E.  552,  42  L.  R.  A.  347;  Richardson  v.  Scotts  Bluff  County,  59 
Neb.  400,  81  N.  W.  309,  48  L.  R.  A.  294,  80  Am.  St.  Rep.  682.  But  see,  contra, 
Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Doc.  55 ;  Workman  v.  Campbell,  46 
Mo.  305;    Burbridge  v.  Fackler,  2  MacArthur  (D.  C.)  407;    Denisou  v.  Craw- 


286  LEGALITY  OF  OBJECT.  (Ch.  8- 

The  rule,  however,  does  not  apply  to  an  agreement,  for  purely  pro- 
fessional services,  such  as  the  drafting  of  a  petition  to  set  forth  a  claim 
for  presentment  to  the  legislature,  attending  the  taking  of  testimony, 
collecting  facts,  preparing  arguments,  and  submitting  them  orally  or 
in  writing  to  a  committee  or  other  proper  authority,  and  other  services 
of  like  character.  They  rest  on  the  same  principle  of  ethics  as  profes- 
sional services  rendered  in  a  court  of  justice,  and  are  no  more  ob- 
jectionable/^* 

Corruption  of  Public  Officers. 

"Any  contract,"  says  Greenhood,^^^  "contemplating  the  use  of  secret 
influence  with  public  officers,^^*  or  calculated  to  induce  the  use  of  such 
influence, ^^^  is  void,  especially  when  one  of  the  parties  is  a  public 
offlcer  himself,^^°  though  he  be  but  a  representative  of  a  foreign  gov- 
ernment, and  his  position  be  merely  honorary."  ^^^     Under  this  rule  any 

ford  Co.,  48  Iowa,  211;  Bergeo  v.  Frisbie,  125  Cal.  168,  57  Pac.  784.  The 
legislature  may  determine  what  public  policy  requires  or  permits  in  prosecut- 
ing claims  of  the  state  against  the  United  States,  and  the  manner  of  compensa- 
tion. Davis  V.  Com.,  164  Mass.  241,  41  N.  E.  292,  30  L.  R.  A.  743.  See,  also. 
Opinion  of  Justices  (N.  H.)  54  Atl.  950. 

126  TRIST  V.  CHILD,  21  Wall.  441,  22  L.  Ed.  623;  Bryan  v.  Reynolds, 
5  Wis.  200,  68  Am.  Dec.  55;  Chesebrough  v.  Conover.  140  N.  Y.  382,  35  N. 
E.  633  (affirming  60  Hun.  634,  21  N.  Y.  Supp.  566);  Salinas  v.  Stillman,  66 
Fed.  677,  14  C.  C.  A.  50.  And  see  Houlton  v.  Nichol,  93  Wis.  393,  67  N.  W. 
715,  33  L.  R.  A.  166,  57  Am.  St.  Rep.  928. 

12  T  Greenh.  Pub.  Pol.  p.  357,   rule  300. 

128  Murray  v.  Walcelield,  9  Mo.  App.  591;  Hutchen  v.  Gibson,  1  Bush  (Ky.) 
270.  To  use  influence  to  procure  session  of  legislature  at  a  particular  place. 
Thome  v.  Yontz,  4  Cal.  321.  To  use  influence,  or  agreement  tending  to  en- 
courage use  of  influence,  with  the  prosecuting  attorney  in  respect  to  crim- 
inal prosecutions.  Ormerod  v.  Dearman,  100  Pa.  561.  45  Am.  Rep.  391;  Wight 
V.  Rindskopf,  43  Wis.  344;  Wildey  v.  Collier,  7  Md.  273,  61  Am.  Dec.  346; 
Rhodes  v.  Neal,  64  Ga.  704,  37  Am.  Rep.  93;  Barron  v.  Tucker,  53  Vt.  338, 
38  Am.  Rep.  684.  Agreement  for  compensation  to  use  influence  to  procure 
pardon  of  convict,  or  commutation  of  sentence.  Haines  v.  Lewis,  54  Iowa, 
301,  6  N.  W.  495;  O'Reilly  v.  Cleary,  8  Mo.  App.  186;  Kribben  v.  Haycraft, 
26  Mo.  396;  Hatzfleld  v.  Gulden,  7  Watts  (Pa.)  152,  31  Am.  Dec.  750;  Norman 
V.  Cole,  3  Esp.  253;  Deering  &  Co.  v.  Cunningham.  63  Kan.  174,  65  Pac. 
203,  54  L.  R.  A.  410.  But  see  Formby  v.  Pryor,  15  Ga.  258;  Moyer  v,  Can- 
tieny,  41  Minn.  242,  42  N.  W.  1060;  Rau  v.  Boyle,  5  Bush  (Ky.)  253;  Timothy 
v.  Wright,  8  Gray  (Mass.)  522;  Chadwick  v.  Knox,  31  N.  H.  226.  64  Am. 
Dec.  329,-— sustaining  such  an  agreement  where  no  corrupt  means  were  to 
be  resorted  to. 

129  TRIST  V.  CHILD,  21  Wall.  441,  22  L.  Ed.  623;  Tool  Co.  v.  Norris,  2 
Wall.  45,  17  L.  Ed.  8(58;  Ormerod  v.  Dearman,  100  Pa.  501,  45  Am.  Rep. 
391;  Bowman  v.  Coffroth,  59  Pa.  19;  O'Hara  v.  Carpenter,  23  Mich.  410, 
9  Am.  Rep.  89. 

130  Oscanyan  v.  Arms  Co.,  103  U.  S.  201,  26  L.  Ed.  539;  Hovey  v.  Storer, 
63  Me.  486. 

131  Note  134.  infra. 


§  156)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY.  287 

agreement  by  which  a  person  is  to  endeavor  to  procure  a  government 
contract  for  another  by  the  use  of  corrupt  means  is  illegal.  Some  courts 
hold  that  such  an  agreement,  though  a  compensation  is  to  be  paid,  is  not 
illegal  in  itself,  but  becomes  so  only  where  corrupt  means  are  to  be 
resorted  to.^^^  Other  courts,  however,  have  held  that  any  such  agree- 
ment, for  a  compensation,  is  illegal,  because  of  its  tendency  to  intro- 
duce corrupt  means.  "Considerations,"  it  has  been  said  by  the  supreme 
court  of  the  United  States,  "as  to  the  most  efficient  and  economical 
mode  of  meeting  the  public  wants  should  alone  control,  in  this  respect, 
the  action  of  every  department  of  the  government.  *  *  *  What- 
ever tends  to  introduce  any  other  elements  into  the  transaction  is 
against  public  policy.  That  agreements  like  the  one  under  consider- 
ation have  this  tendency  is  manifest.  They  tend  to  introduce  personal 
solicitation  and  personal  influence  as  elements  in  the  procurement  of 
contracts ;  and  thus  directly  lead  to  inefficiency  in  the  public  service, 
and  to  unnecessary  expenditures  of  the  public  funds."  ^^^ 

It  has  also  been  held  that  a  contract  to  bribe  or  corruptly  influence 
officers  of  a  foreign  government  will  not  be  enforced  in  the  courts  of 
this  country,  even  though  it  may  not  be  invalid  according  to  the  laws 
and  customs  of  the  foreign  country.  The  courts  will  refuse  to  enforce 
such  a  contract,  "not  from  any  consideration  of  the  interests  of  that 
government,  or  any  regard  for  its  policy,  but  from  the  inherent  vicious- 
ness  of  the  transaction,  its  repugnance  to  our  morality,  and  the  per- 
nicious effect  which  its  enforcement  by  our  courts  would  have  upon 
our  people."  ^^* 

As  in  the  case  of  contracts  to  render  services  in  procuring  the  pas- 
sage of  acts  and  ordinances,  so  also  in  the  case  of  contracts  to  render 
services  in  procuring  administrative  action  by  government  officials, 
the  services  contracted  for  may  be  legitimate.  If  the  contract  does 
not  tend  to  induce  the  use  of  corrupt  means,  and  in  some  jurisdictions, 
as  we  have  seen,  if  corrupt  means  are  not  to  be  resorted  to,  the  contract 
is  valid. ^^^ 


132  Lyon  V.  Mitchell,  36  N.  Y.  235,  93  Am.  Dec.  502;  SOUTHARD  v. 
BOYD,  51  N.  Y.  177;  Beal  v.  Polhemus,  G7  Mich.  130,  34  N.  W.  532;  Win- 
penny  V.  French,  18  Ohio  St.  4G9;  Barry  v.  Capen,  151  Mass.  99,  23  N.  E. 
735,  6  L.  R.  A.  808;  Formby  v.  I'ryor,  15  Ga.  258;  Moyer  v.  Cantieny.  41 
Minn.  242,  42  N.  W.  lOGO;   Chadwick  v.  Knox,  31  N.  H.  220.  (34  Am.  Dec.  329. 

133  Tool  Co.  V.  Norris,  2  Wall.  45,  17  L.  Ed.  868;  Oscanyan  v.  Arms  Co., 
103  U.  S.  261,  26  L.  Ed.  539;  Elkhart  County  Lodge  v.  Crary,  98  Ind.  238, 
49  Am.  Rep.  746:  MEGUIRE  v.  CORWIXE,  101  U.  S.  108,  25  L.  Ed.  899; 
Devlin  v.  Brady,  36  N.  Y.  531;  Spence  v.  Harvey,  22  Cal.  330,  83  Am.  Dec. 
09;  Caton  v.  Stewart,  76  N.  C.  357;  Critchfield  v.  Paving  Co.,  174  111.  466, 
51   N.   E.   552.  42  L.   R.  A.  347. 

134  Oscanyan  v.  Arms  Co.,   103   U.   S.  261.  26  L.  Ed.  539. 

135  Sedgwick  v.  Stanton,  14  N.  Y.  289;  Burhridge  v.  Fackler,  2  :MacArthnr 
(D.  C.)  407;    Fainter  v.  Drum,  40  Pa.  467,  ante,  p.  286.    Contract  to  procure 


2SS  LEGALITY   OF   OBJECT.  (Oh.  S 

Agreements  by  Public  or  Quasi  Public  Corporations. 

As  falling  within  this  class  of  illegal  contracts  may  also  be  mentioned 
agreements  by  public  or  quasi  public  corporations  which  interfere  with 
their  duties  to  the  public.^ ^^  Railroad  companies  and  other  common 
carriers,  for  instance,  are  regarded  to  some  extent  as  public  servants, 
and  it  is  contrary  to  public  policy  for  them  to  make  any  agreement 
whereby  they  may  be  hindered  in  serving  the  public.  For  this  reason 
most  courts  have  refused  to  uphold  subscriptions  or  other  contracts 
with  railroad  companies,  under  which  they  bind  themselves  to  build 
their  road  along  a  particular  route,  or  to  locate  their  station  or  depot 
at  a  particular  point  or  not  at  a  particular  point.^"  Some  courts,  how- 
ever, sustain  such  a  contract  where  the  company  is  not  restricted  from 
locating  lines,  stations,  or  depots  along  other  routes  or  at  other  points 
also,  or  otherwise  doing  whatever  the  public  convenience  may  re- 
quire.^ ^* 

So,  also,  any  other  agreement  by  a  railroad  company  or  other  corpo- 
ration chartered  as  a  common  carrier,  or  for  other  quasi  public  pur- 
poses, as  in  the  case  of  water  or  gas  companies,  by  which  it  prevents 
itself  from  performing  the  duties  which  it  owes  to  the  public,  is  void.^^^ 

by  legitimate  means  a  pardon,  commutation  of  sentence,  etc.,  in  a  proper 
case.     Note  128,  supra. 

138  "Any  contract  wlilcti  will  disable  a  public  or  quasi  public  corporation 
from  performing  the  duty  which  it  has  undertaken,  or  which  has  been  im- 
posed upon  it,  for  the  public  weal,  or  compels  it  to  make  the  public  accom- 
modation or  convenience  subservient  to  its  private  interests,  is  void."  Greenh. 
Pub.  Pol.  rule  269;  Chicago  Gas-Light  &  Coke  Co.  v.  Coke  Co.,  121  111.  530, 
13  N.  E.  1G9,  2  Am.  St.  Rep.  124;  Doane  v.  Raihvay  Co.,  160  111.  22,  45  N. 
E.  507,  35  L.  R,  A.  5SS;  South  Chicago  City  Ry.  Co.  v.  Railway  Co.,  171 
lU.  391,  49  N.   B.   576. 

13-  Pacific  R.  Co.  v.  Seely,  45  Mo.  212,  100  Am.  Dec.  369;  Fuller  v.  Dame, 
18  Pick.  (Mass.)  472;  St.  Joseph  &  D.  C.  R.  Co.  v.  Ryan,  11  Kan.  602,  15 
Am.  Rep.  357;  HoUaday  v.  Patterson,  5  Or.  182;  Bestor  v.  Wathen,  60  111. 
138;  WOODSTOCK  IRON  CO.  v.  EXTENSION  CO.,  129  U.  S.  643,  9  Sup. 
Ct.  402,  32  L.  Ed.  819 ;  Florida  C.  &  P.  R.  Co.  v.  State,  31  Fla.  482,  13  South. 
103,  20  L.  R.  A.  419,  34  Am.  St.  Rep.  30;  St.  Louis,  J.  &  C.  R.  Co.  v.  Mathers, 
71  111.  592,  22  Am.  Rep.  122;  Id.,  104  111.  257;  Williamson  v.  Railroad  Co., 
53  Iowa.  126,  4  N.  W.  870;  Burney's  Heirs  v.  Ludeling,  47  La.  Ann.  73,  16 
South.  507. 

138  Louisville.  N.  A.  &  C.  R.  Co.  v.  Sumner,  106  Ind.  .55,  5  N.  E.  404,  55 
Am.  Rep.  719;  SwartAvout  v.  Railroad  Co.,  24  Mich.  389;  First  Nat.  Bank 
v.  Hendrie.  49  Iowa,  402,  31  Am.  Rep.  153;  Harris  v.  Roberts,  12  Neb.  631, 
12  N.  W.  89,  41  Am.  Rep.  779;  International  &  G.  N.  Ry.  Co.  v.  Dawson,  62 
Tex.  260;  Te.xas  &  St.  L.  R.  Co.  v.  Robards,  60  Tex.  545,  48  Am.  Rep.  268; 
Telford  v.  Railroad  Co.,  172  111.  559,  50  N.  E.  105;  Lyman  v.  Railroad  Co., 
190  111.  320,  00  N.  E.  515,  52  L.  R.  A.  (J45. 

130  Central  Transp.  Co.  v.  Palace-Car  Co.,  139  U.  S.  24,  11  Sup.  Ct.  478, 
35  L.  Ed.  55;  York  &  M.  Line  R.  Co.  v.  Winans,  17  How.  30,  15  L.  Va\.  27; 
Peoria  &  R.  I.  R.  Co.  v.  Mining  Co..  68  111.  489;  (^ibbs  v.  Gas  Co..  130  U. 
S.  390,  9  Slip.  Ct.  553,  32  L.  Ed.  979;    Peters  v.  Rylands,  20  Pa.  497,  59  Am. 


§  156)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY.  289 

A  combination,  therefore,  between  two  railroad  companies  ownini^ 
competing  lines,  by  which  one  line  is  to  be  discontinued  or  leased  to 
the  other,  will  not  be  sustained. ^^"^  This  principle,  it  has  been  said, 
does  not  apply  to  individuals  engaged  in  the  business  of  common  car- 
riers. The  owner  of  one  line  of  steamers,  it  has  been  held,  may  make 
a  contract  with  an  individual  owner  of  a  competing  line,  by  which  the 
latter  is  to  discontinue  his  vessels.^ *^ 

Under  this  head  may  also  be  mentioned  contracts  by  which  a  common 
carrier  or  other  quasi  public  corporation  makes  an  undue  discrimina- 
tion in  favor  of  a  particular  person.  Such  a  contract  is  not  only 
generally  prohibited  by  statute,  but  is  contrary  to  public  policy  inde- 
pendently of  any  statutory  provision  on  the  subject.^* ^ 

Agreements  Affecting  the  Government,  etc. 

There  are  many  agreements  which,  though  not  tending  to  injure  the 
public  service,  injuriously  affect  the  government  itself  in  some  other 
way,  and  which  are  therefore  illegal,  as  contrary  to  public  policy.^*''' 
These  agreements  are  collected  by  Greenhood,^**  and  may  be  shortly 
stated  as  follows :  (i)  Agreements  contemplating  the  appropriation 
of  public  money  for  purposes  not  sanctioned  by  law.^*''  (2)  Agree- 
ments which  seek  to  secure  to  strangers  a  gratuity  which  the  public 

Dec.  746;  State  v.  Railroad  Ck).,  29  Conn.  538;  Denver  &  N,  O.  R.  Co.  v. 
Railroad  Co.  (C.  C.)  15  Fed.  650. 

140  Thomas  v.  Railroad  Co.,  101  U.  S.  71,  25  L.  Ed.  1)50;  Greeuh.  Pub. 
Pol.  p.  318  (collecting  cases) ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morris,  67  Tex.  692, 
4  S.  W.  156.  This  is  expressly  prohibited  or  regulated  by  statute  in  most 
states. 

14.1  LesUe  v.  Lorillard,  110  N.  Y.  519,  18  N.  E.  303,  1  D.  R.  A.  456.  But 
see  Anderson  v.  Jett,  69  Ky.  375,  12  S.  W.  670,  6  L.  K.  A.  390. 

142  Indianapolis,  D.  &  S.  R.  Co.  v.  Ervin,  118  111.  250,  8  N.  B.  862,  59  Am. 
Rep.  309;  Scofield  v.  Railroad  Co.,  43  Ohio  St  571,  3  N.  E.  907,  54  Am.  Rep. 
846;  Chesapeake  &  P.  Telephone  Co.  v.  Telegraph  Co.,  66  Md.  399,  7  Atl. 
809,  59  Am.  Rep.  167.  It  has  been  held,  however,  that  there  is  nothing  to 
prevent  a  quasi  public  corporation  from  granting  exclusive  pri\ileges,  as 
where  a  railroad  company  gives  a  telegraph  company  the  exclusive  privilege 
of  operating  a  telegraph  line  along  its  road;  but  there  is  high  authority'  to 
the  contrary.  Western  Union  Telegraph  Co.  v.  Railroad  Co.,  86  111.  246,  29 
Am.  Rep.  28;  Canadian  Pac.  K.  Co.  v.  Telegraph  Co.,  17  Can.  S.  C.  R.  151. 
Contra,  Western  Union  Telegraph  Co.  v.  Telegraph  Co.,  65  Ga.  160.  38  Am. 
Rep.  781.  Contract  between  railroad  and  ferry  company.  Wiggins  Ferry 
Co.  V.  Railroad  Co.,  73  Mo.  3S9,  39  Am.  Rep.  519. 

143  Fisher  Electric  Co.  v.  Iron  Works,  116  Mich.  293,  74  N.  W.  493.  "Con- 
tracts which  take  advantage  of  the  depreciation  of  the  national  currency, 
or  which  contemplate  speculation  on  such  depreciation,  are  valid."  Greenh. 
Pub.  Pol.  rule  305.  p.  370.  Cox  v.  Smith,  1  Nov.  161,  90  Am.  Dec.  470.  Agree- 
ments for  the  purchase  and  sale  of  gold:  Brown  v.  Speyers,  20  Grat.  (Va.) 
296:  Cooke  v.  Davis,  53  N.  Y.  318;  Cameron  v.  Durkheim.  56  N.  Y.  425; 
Peabody  v.  Speyers,  56  N.  Y.  230. 

144  Greenh.  Pub.  Pol.  rules  302-315. 

14  5  Capehart  v.  Rankin,   3   W.    Va.  571,  100  Am.    Dec.   779. 
Clark  Cont.  (2d  Ed.)— 19 


290  LEGALITY  OF  OBJECT.  (Ch.  8 

has  offered  for  services  rendered ;  as  in  the  case  of  an  agreement  to 
secure  to  a  stranger  bounties  offered  by  the  government  for  miHtary 
services.^*"  (3)  Agreements  which  seek  to  secure  to  a  stranger  the 
benefit  of  a  privilege  granted  by  the  government  to  the  promisor ;  as, 
for  instance,  where  a  person  who  has  received  from  the  government  a 
Hcense  to  trade  with  the  Indians  agrees  for  a  consideration  to  share 
the  profits  with  a  stranger.^*'^  (4)  Agreements  with  an  aUen  enemy.^** 
An  agreement,  the  object  or  natural  tendency  of  which  is  to  diminish 
competition  among  the  applicants  or  bidders  for  a  public  contract  or 
for  a  public  franchise,  is  illegal  as  against  public  policy/** 


SAME— AGREEMENTS    PROMOTIVE    OF   NONOFFICIAL 

CORRUPTION.!  60 

157.   The  illegal  agreements  Tirhicli  may  be  classified  luider  this  head 
are: 

(a)  Agreements  by  a  private  citizen  to  violate  a  duty  -which  he  owes 

to  the  public. 

(b)  Agreements  tending  to  impair  the  integrity  of  public  elections. 

Among  the  agreements  which  may  be  treated  under  the  first  head, 
and  which  are  deemed  contrary  to  public  policy  and  illegal,  are  agree- 
ments in  consideration  of  a  person's  forbearing  to  petition  for  the 
repeal  of  a  public  law,^°^  or  to  oppose  on  public  grounds  any  measure 
or  proceeding  before  a  legislative  body,^^^  agreements  tending  to 
suppress  inquiry  by  the  legislature  into  matters  of  public  concern,^ ^' 
agreements  in  consideration  of  a  person's  opposing  ^^*  or  of  his  approv- 


148  Decker  v.  Saltsman,  1  Hun  (N.  Y.)  421. 

147  Gould  V.  Kendall,  15  Neb.  549,  19  N.  W.  483. 

148  Ante,  p.  146.  See  Greenh.  Pub.  Fol.  Tules  oCK>-315.  "It  was  a  principle 
of  the  common  law  that  trading  with  an  enemy,  without  the  king's  license, 
was  illegal  in  British  subjects."  Potts  v.  Bell,  8  Term  R.  548.  Some  writers 
class  such  agreements  among  those  in  breach  of  express  rules  of  the  common 
law. 

149  McMullen  v.  Hoffman,  174  U.  S.  6S9,  19  Sup.  Ct.  839,  43  L.  Ed.  1117; 
Boyle  V.  Adams,  50  Minn.  255,  52  N.  W.  SGO,  17  L.  K.  A.  96;  Conway  v. 
Post  Co.,  190  111.  89,  60  N.  B.  82;  Baird  v.  Sheehan,  38  App.  Div.  7,  56  N. 
Y.  Supp.  228,  affirmed  166  N.  Y.  031,  60  N.  E.  1107.  See,  also,  Kine  v. 
Turner,  27  Or.  356,  41  Pac.  664.  Cf.  Hyer  v.  Traction  Co.,  108  U.  S.  471, 
18  Sup.  Ct  115,  42  L.  Ed.  547;    ante.  p.  258. 

160  Greenh.   Pub.   Pol.   p.   383. 

161  Keed  v.  Warehouse  Co.,  2  Mo.  App.  82. 

i52pingry  v.  Washburn,  1  Aikens  (Vt.)  264,  15  Am.  Dec.  676.  This  rule 
does  not  apply  to  opposition  to  private  legislation  on  purely  private  grounds. 
Greenh.  Pub.  Pol.   rule  317,  p.  38i. 

163  Usher  v.  McBratney,  3  Dill.  38.3,  Fed.  Cas.  No.  16,805. 

184  Slocum   V.   Wooley,  43  N.  J.  Eq.  451,   11  Atl.  264. 


4 


§  157)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY.  291 

ing  or  not  opposing  a  public  improvement  or  other  public  project,^" 
or  withdrawing  his  petition  for  such  an  improvement.^^" 

Any  agreement  which  tends  to  impair  the  integrity  of  public  elec- 
tions is  clearly  contrary  to  public  policy/^''  "Every  voter  is  bound  to 
use  his  influence  to  promote  the  public  good  according  to  his  own 
honest  opinions  and  convictions  of  duty,  and  if,  for  money  or  other 
personal  profit,  he  agrees  to  exert  his  influence  against  what  he  believes 
to  be  for  the  public  good,  he  is  corrupt,  and  the  agreement  void."  ^^' 
A  promise,  therefore,  in  consideration  of  the  promisee's  voting  for 
the  promisor  for  a  public  office,^ ^^  or  procuring  his  nomination,^®"  or 
aiding  in  procuring  his  election,^ ®^  or  of  withdrawing  himself  as  a 
candidate  for  election,^ *^^  or  a  promise  to  pay  money  if  a  certain  candi- 
date shall  be  elected,  is  illegal  and  void.  A  bet  on  the  result  of  an 
election  is  illegal  even  in  the  absence  of  a  statutory  prohibition,^'^ 

IBB  Howard  v.  Independent  Church,  18  Md.  451;  Maguire  v.  Smock,  42 
Ind.  1,  13  Am.  Rep.  353;  Smith  v.  Applegate,  23  N.  J.  Law,  352;  Doane  v. 
Railway  Co.,  IGO  111.  22,  45  N.  E.  507,  35  D.  R.  A.  588;  Greer,  Hawes  &  Co. 
V.  Serer-son,  119  Iowa,  84,  93  N.  W.  72  (consent  of  property  holder  required 
by  statute  to  establishment  of  saloon).  Where  the  opposition  is  on  purely 
private  grounds,  it  has  been  held  that  the  rule  does  not  apply.  Weeks  v. 
I.ippencott,  42  Pa.  474.  Cf.  Montclair  Military  Academy  v.  Railway  Co.^ 
G5  N.  J.   Law,   328,   47  Atl.  890. 

156  Jacobs  V.  Tobiason,  G5  Iowa,  245,  21  N.  W.  590,  .54  Am.  Rep.  9. 

167  A  person  who  furnishes  liquor  or  refreshments  to  electors  at  the  re- 
quest of  another,  for  the  purpose  of  influencing  them  in  their  votes,  cannot 
recover  therefor.     Duke  v.  Asbee,  33  N.  C.  112;    Greenh.  Pub.  Pol.  p.  389. 

158  Nichols  V.  Mudgett,  32  Vt.  546;  Roby  v.  Carter,  6  Tex.  Civ.  App.  295^ 
25  S.  W.  725;   Burden  Rank  v.  Phelps,  5  Kan.  App.  685,  48  Pac.  938. 

159  Nichols  V.  Mudgett,  32  Vt.  546.     Ante,  p.  286. 

160  Liness  v.  Hesing,  44  111.  113,  92  Am.  Dec.  153;  Livingston  v.  Page,  74 
Vt.  35(^  52  Atl.  965,  59  L.  R.  A.  336,  93  Am.  St.  Rep.  901  (to  use  influence 
of  newspaper  to  secm'e  nomination). 

161  Stout  V.  Ennis,  28  Kan.  706;  Swayze  v.  Hull,  8  N.  J.  Law,  54,  14  Am. 
Dec.  399;  Ham  v.  Smith,  87  Pa.  63.  This  does  not  apply  to  "an  agreement 
to  pay  for  open  advocacy  of  the  election  of  a  candidate,  or  for  legitimate 
political  work."  Greenh.  Pub.  Pol.  393;  Murphy  v.  English,  64  How.  Prac. 
(N.  Y.)  362;    Sizer  v.  Daniels,  66  Barb.  (N.  Y.)  426. 

162  Robinson  v.  Kalbfleisch,  5  Thomp.  &  C.  (N.  Y.)  212. 
i63Lockhart  v.   Hullinger,   2  111.  App.  465;    Gordon  v.   Casey,   23   111.   70; 

Guyman  v.  Burlingame,  36  111.  201;  Vischer  v.  Yates,  11  Johns.  (N.  Y.)  23; 
McAllister  v.  Hoffman,  10  Serg.  &  R.  (I'a.)  147,  16  Am.  Dec.  55t>;  Wroth 
V.  Johnson,  4  liar.  &  McH.  (Md.)  284;  Gregory  v.  King,  58  111.  169,  11  Am. 
Rep.  56  (bet  in  one  state  on  result  of  presidential  election  in  another);  Greenh. 
Pub.  Pol.  391. 


292  LEGALITY   OP  OBJECT.  (Ch.  8 


SAME— AGREEMENTS   TENDING  TO   PERVERT   OR   OBSTRUCT 

PUBLIC  JUSTICE. 

158.  Any  agreement  t^McIi  tends  to  pervert  or  obstruct  public  justice 

is  contrary  to  public  policy,  and  void. 

159.  COMPOUNDING    CRIME.       An    agreement    to    stifie    a    criminal 

prosecution  is  illegal. 

160.  ARBITRATION.      Agreements  to  refer  matters  to  arbitration  as 

a  condition  precedent  to  suit,  at  least  if  not  going  to  tbe  Tvbole 
question  of  liability,  are  valid;  but  it  is  othervtrise  where  tbe 
agreement  is  to  refer  to  arbitration  alone,  aoid  not  to  sue  at  all. 

Any  agreement  which  tends  to  pervert  or  obstruct  public  justice, 
even  though  it  may  not  amount  to  a  crime,^®*  is  illegal,  as  being  con- 
trary to  public  policy.  If  an  agreement,  for  instance,  tends  to  induce 
a  witness  to  perjure  himself,  or  to  give  false  testimony  through  bias, 
or  if  it  tends  to  induce  parties  to  procure  false  testimony,  it  will  not 
be  enforced.^*^^  In  an  Alabama  case  a  party  had  promised  to  give  a 
witness,  for  attending  court,  a  sum  of  money  in  excess  of  his  legal 
fees,  the  amount  of  the  comipensation  to  depend  on  the  promisor's  suc- 
cess in  the  suit,  and  the  agreement  was  held  void.  "Such  contracts," 
said  the  court,  "are  against  sound  policy,  because  their  inevitable 
tendency  is,  if  not  to  invite  to  perjury,  at  least  to  sway  the  mind  of  the 
witness,  by  giving  him  the  interest  of  a  party  to  the  cause,  and  thus 
contaminate  the  stream  of  justice  at  its  source."  ^®®  So,  also,  agree- 
ments are  illegal  if  they  contemplate  the  suppression  of  lawful  evi- 
dence.^®^ 

164  Clark,  Cr.  Law  (2d  Ed.)  148,  376,  and  eases  cited;  Buck  v.  Bank,  27 
Mich.  293,  15  Am.  Rep.  189.  Agreement  for  feigned  suit  to  test  validity  of 
bonds  before  issue.     Van  Horn  v.  Kittitas  County  (C.  C.)  112  Fed.  1. 

165  Gillet  V.  Logan  Co.,  07  III.  25G;  Goodrich  v.  Tenney,  144  111.  422,  33 
N.  E.  44,  19  L.  R.  A.  371,  36  Am.  St.  Rep.  459;  Patterson  v.  Donner,  48  Cal. 
369;  Greenh.  Pub.  Pol.  p.  441,  and  cases  cited;  HUTLEY  v.  HUTLEY,  L. 
R.  8  Q.  B.  112;  Pa  ton  v.  Stewart,  78  111.  481;  Bowling  v.  Blum  (Tex.  Civ. 
App.)  52  S.  W.  97;  Langdon  v.  Conlin  (Neb.)  93  N.  W.  389,  60  L.  R.  A.  429. 
A  contract  between  a  physician  and  a  party  injured  by  a  railroad  company, 
that  the  physician  shall  go  to  the  advisors  of  the  company,  and  explain  the 
nature  of  the  injuries,  and  receive  as  compensation  an  amount  dependent 
on  the  amount  awarded,  is  void.  Tliomas  v.  Caulkett  57  Mich.  392,  24  N. 
W.  154,  58  Am.  Rep.  369.  A  contract  to  procure  such  testimony  as  will  pro- 
cure a  verdict  is  void.  Quirk  v.  Muller,  14  Mont  467,  36  Pac.  1077,  25  L. 
R.  A.  87,  43  Am.   St.  Rep.  647. 

166  Dawkins  v.  Gill,  10  Ala.  206.  There  are  many  cases  which  hold  that 
an  agreement  by  a  party  to  pay  a  witness  compensation  in  addition  to  his 
legal  fees  is  contrary  to  public  poUcy.     See  Greenh.  Pub.  Pol.  p.  441. 

167  Greenh.  Puli.  I'ol.  p.  441.  As,  where  an  attorney  for  a  consideration 
agrees  with  a  person  accused  of  crime  to  procure  the  release  from  Jail  of 
a  witness  against  him.     Crisup  v.  Grosslight,  79  Mich.  380,  44  N.   W.  621, 


§§  158-160)      AGREEMENTS    CONTRARY   TO   PUBLIC    POLICY.  293 

All  agreements,  it  is  said  in  a  late  Indiana  case,  relating  to  proceed- 
ings in  courts,  civil  or  criminal,  which  may  involve  anything  incon- 
sistent with  the  impartial  course  of  justice,  are  void,  though  not  open 
to  the  charge  of  actual  corruption,  and  regardless  of  the  good  faith  of 
the  parties,  or  of  the  fact  that  no  evil  resulted  therefrom.^'* 

Compounding  Crime. 

The  most  obvious  example  of  agreements  tending  to  obstruct  public 
justice  are  agreements  to  stifle  criminal  prosecutions.  "You  shall  not 
make  a  trade  of  a  felony.  If  you  are  aware  that  a  crime  has  been 
committed,  you  shall  not  convert  that  crime  into  a  source  of  benefit  or 
profit  to  yourself."  ^®®  Not  only  is  an  agreement  not  to  prosecute  a 
person  for  a  crime  void  on  the  ground  that  it  is  against  public  policy, 
but  it  is  void  because  the  agreement  is  in  itself  a  crime. ^^° 

It  has  been  said  that  this  rule  is  subject  to  exceptions  in  cases  where 
civil  and  criminal  remedies  coexist,  and  that  it  is  permissible  in  some 
cases  to  compromise  with  the  offender,  and  agree  not  to  prosecute 

And  see  Bostick  v.  INIcClaren,  2  Brev.  (S.  C.)  275;  Badger  v.  Williams,  1  D. 
Chip.  (Vt.)  137 ;  Thompson  v.  Whitman,  4  Jones  (N.  C.)  47 ;  Young  v.  Thom- 
son, 14  Ck)lo.  App.  294,  59  Pac.  1030.  Regulating  disclosure  of  witness.  Wight  v. 
Rindslvopf,  43  Wis.  344.  Asserting  unjust  claims.  Rhodes  v.  Sparks.  6  Pa. 
473. 

168  Brown  v.  Bank,  137  Ind.  165,  37  N.  E.  158.  24  L.  R.  A.  206  (contract  made 
by  justice  of  peace  whereby,  in  case  the  justice  secures  arrest  and  the  return 
of  stolen  property,  he  is  to  receive  a  percentage).  See  Weber  v.  Shay,  56  Ohio 
St.  116,  46  N.  E.  377,  37  L.  R.  A.  230,  60  Am.  St  Rep.  743  (contract  by  attorney 
to  prevent  Indictment).  Contract  to  withdraw  opposition  to  probate  of  will 
not  void.     Seaman  v.  Colley,  178  Mass.  478,  59  N.  E.  1017. 

189  AVILLIAMS  V.  BAYLEY,  L.  R.  1  H.  L.  200.  Ajid  see  Collins  v.  Blan- 
tern,  2  Wils.  341,  1  Smith,  Lead.  Cas.  387,  notes;  Henderson  v.  Palmer, 
71  111.  579,  22  Am.  Rep.  117;  Roll  v.  Raguet  4  Ohio,  400,  22  Am.  Dec.  759; 
McMahan  v.  Smith,  47  Conn.  221,  36  Am.  Rep.  67;  Chandler  v.  Johnson, 
39  Ga.  85;  Schultz  v.  Culbertsou,  40  Wis.  313,  1  N.  W.  19;  Meech  v.  Lee, 
82  Mich.  274,  46  N.  W.  383;  Ricketts  v.  Harvey,  106  Ind.  5<54,  6  N.  E.  325; 
Gorham  v.  Keyes,  137  Mass.  583;  Friend  v.  Miller,  52  Kan.  139,  34  Pac. 
397,  39  Am.  St  Rep.  340;  Smith  v.  Steely,  80  Iowa,  73&  45  N.  W.  912;  Foley 
V.  Greene,  14  R.  I.  618,  51  Aju.  Rep.  419;  Br\\s  v.  Smith,  68  N.  H.  253,  44 
Atl.  384,  73  Am.  St  Rep.  584;  Kirkland  v.  Benjamin,  67  Ark.  480,  55  S.  W. 
840;  Smith  Premier  Typewriter  Co.  T.  Mayhew  (Neb.)  90  N.  W.  993.  A 
prosecution  for  seduction  cannot  he  compoimded.  Budd  v.  Rutherford,  4 
Ind.  App.  386,  30  N.  E.  1111.  Nor  prosecution  for  obstructing  a  highway. 
Amestoy  v.  Tl-ansit  Co.,  95  Cal.  311,  30  Pac.  550.  A  conti'act  not  to  sue  for 
pollution  of  stream,  amounting  to  public  nuisance,  is  void.  Weston  Paper 
Co.  v.  Comstock  (Ind.  Sup.)  58  N.  E.  79.  It  makes  no  difference  whether 
the  agreement  is  express  or  implied.  Janis  v.  Roentgen,  52  Mo.  App.  114.  If 
no  crime  was  in  fact  committed,  the  contract  is  not  illegal.  Smith  v.  Blach- 
ley,  188  Pa.  550,  41  Atl.  619,  68  Am.  St.  Hep.  887;  Treadwell  v.  Tobert,  122 
Ala.  297,  25  South.  216;  Woodham  v.  Alien,  130  Cal.  194,  02  Pac.  398.  But 
see  State  v.  Carver,  69  N.  H.  21(-.  39  Atl.  973. 

iTo  Clark,  Cr.  Law    (2d  Ed.)  383. 


294  LEGALITY   OF   OBJECT.  (Ch.  8 

him.  In  an  English  case  it  was  said:  "We  shall  probably  be  safe 
in  laying  it  down  that  the  law  will  permit  a  compromise  of  all  offenses, 
though  made  the  subject  of  a  criminal  prosecution,  for  which  offenses 
the  injured  party  might  sue  and  recover  damages  in  an  action.  It  is 
often  the  only  manner  in  which  he  can  obtain  redress.  But  if  the 
offense  is  of  a  public  nature,  no  agreement  can  be  valid  that  is  founded 
on  the  consideration  of  stifling  a  prosecution  for  it."  "^  In  the 
United  States  this  distinction  is  not  generally  recognized,  and  it  is  held 
that  an  agreement  to  compound  a  crime,  whether  misdemeanor  or 
felony,  is  illegal/ '^^ 

Of  course,  persons  may  always  settje^^ny .  claims  they  may  have 
against  each  other,  even  though  the  claim  may  arise  from  the  crime 
of  one  of  them,  as  from  larceny  or  embezzlement,  provided  there  is  no 
agreement  not  to  prosecute  for  the  crime. ^"  It  is  the  stifling  of  pros- 
ecutions which  renders  such  agreements  invalid.  In  some  states  par- 
ties are  expressly  permitted  by  statute  to  compromise  prosecutions  for 
certain  misdemeanors.^'* 

Reference  to  Arbitration. 

Agreements  to  refer  matters  in  dispute  to  arbitration  are  sometimes 
regarded  as  attempts  to  "oust  the  jurisdiction  of  the  courts,"  and  to 
that  extent  will  not  be  enforced.^ '^     The  most  common  illustrations 

171  Keir  v.  Leeman,  6  Q.  B.  321.  See,  also,  Id.  9  Q.  B.  395;  Windhill 
Local  Board  v.  Vint,  45  Ch.  D.  351. 

172  PARTRIDGE  v.  HOOD,  120  Mass.  403,  21  Am.  Rep.  524;  Wright  v. 
Rindskopf,  43  Wis.  361;  Pearce  v.  Wilson,  111  Pa.  14,  2  Atl.  99,  56  Am.  Rep. 
243;  Jones  v.  Daunenberg  Co.,  112  Ga.  426.  37  S.  E.  729,  52  D.  R,  A.  271.  And 
see  State  t.  Carver,  69  N.  H.  216,  39  Atl.  973. 

173  FLOWER  V.  SADLER,  10  Q.  B.  Div.  572;  NICKELSON  V.  WILSON, 
60  N.  Y.  362;  Weber  v.  Barrett,  125  N.  Y.  18,  25  N.  E.  1068;  Bothwell  v. 
Brown,  51  111.  234;  Cass  County  Bank  v.  Bricker.  34  Neb.  516,  52  N.  W. 
575,  33  Am.  St  Rep.  049;  Fosdick  v.  Van  Arsdale,  74  Mich.  302,  41  N.  W. 
931;  Poitner  v.  Kirschner,  169  Pa.  472,  32  Atl.  442,  47  Am.  St.  Rep.  925: 
Sloan  V.  Davis,  105  Iowa,  97,  74  N.  W.  922;  Powell  v.  Flanary,  109  Ky. 
342,  59  S.  W.  5 ;    Paige  v.  Hieronymus,  192  111.  546,  61  N.  E.  832. 

1T4  Brown  v.  McCreight,  187  Pa.  181,  41  Atl.  45. 

17  5  Mutual  Reserve  Fund  Life  Ass'n  v.  Woolen  Mills,  82  Fed.  508,  27 
C.  C.  A.  212.  Agreement  between  fidelity  insurance  company  and  employ^ 
whose  honesty  is  guarantied  that  voucher  showing  payment  by  company 
to  employer  of  loss  occasioned  through  employe's  dishonesty  should  be  con- 
clusive evidence  against  employe  as  to  fact  and  extent  of  his  liability  to  com- 
pany, was  void  as  against  public  policy.  Fidelity  &  Casualty  Co.  of  New 
York  V.  Eickhoff  (Minn.)  (S  N.  W.  351;  Fidelity  &  Casualty  Co.  of  New 
York  V.  Grays,  76  Minn.  450,  79  N.  W.  531.  Stipulation  in  contract  entered 
into  between  Italian  citizens,  partly  to  be  performed  in  Italy  and  partly  in 
United  States,  that  Italian  courts  should  have  exclusive  jurisdiction  of  actions 
thereon,  is  not  so  objectionable,  on  grounds  of  public  policy,  that  Massa- 
chusetts courts  will  refuse  to  give  it  the  validitj'  which  it  has  under  the 
Italian  law,  under  the  treaty  with  Italy,  which  gives  citizens  of  each  country 


§§  158-160)      AGREEMENTS   CONTRARY    TO    TDBLIC    POLICY.  295 

of  such  agreements  are  provisions  in  a  buikling  or  construction  con- 
tract for  determination  of  questions  by  the  architect  or  engineer,  and 
in  insurance  poHcies  for  submission  to  arbitrators  to  determine  the 
loss,  though  of  course  they  are  not  Hmited  to  these  contracts.  An 
agreement  to  refer  to  arbitration,  though  so  far  vahd  that  an  action 
can  be  maintained  for  its  breach, ^'^^  will  not  be  specifically  enforced,^^'' 
and  does  not  oust  the  jurisdiction  of  the  court;  that  is,  it  cannot  be 
set  up  as  a  bar  to  an  action  brought  to  determine  the  very  dispute 
which  it  was  agreed  to  refer.^^^  Parties  to  a  contract  may,  however, 
make  arbitration  a  condition  precedent  to  a  right  of  action  for  breach 
of  the  contract,  and  such  a  condition  is  valid. ^^®  It  is  very  generally 
declared  that  an  agreement  to  submit  to  arbitration  the  whole  question 
of  liability,  and  not  merely  those  questions  which  affect  the  amount 
of  damages,  is  void,  even  as  a  condition  precedent,^*"     Upon  principle, 

full  rights  in  the  courts  of  the  other.  MIIT^ENTHAL  v.  MASCAGNI,  66  N. 
E.  42.J,  183  Mass.  19,  GO  L.  K.  A.  812. 

176  LIVINGSTON  V.  RAILLI,  5  El.  &  B.  132;  Munson  v.  Straits  of  Dover 
S.  S.  Ck).,  102  Fed.  92G,  43  C.  C.  A.  57,  affirming  (D.  G.)  99  Fed.  787.  See 
rollook,  Cent.  {3d  Ed.)  308. 

17T  Street  v.  Rigby,  6  Yes.  815,  818. 

1T8  Hurst  V.  Litchfield,  39  N.  Y.  377;  Chamberlain  v.  Railroad  Co.,  54 
Conn.  472,  9  Atl.  244;  Dugan  v.  Thomas,  79  Me.  221,  9  Atl.  3.54;  WHITE  v. 
RAILROAD  CO.,  135  Mass.  216;  Mentz  v.  Insurance  Co.,  79  Pa.  480;  REED 
V.  INSURANCE  CO.,  138  Mass.  572;  Allegre  v.  Insurance  Co.,  G  Har.  & 
J.  (Md.)  408,  14  Am.  Dec.  289;  Kinney  v.  Association,  35  W.  Va.  385,  14  S. 
E.  8,  15  L.  R.  A.  142;  HAMILTON  v.  INSURANCE  CO.,  137  U.  S.  370,  11 
Sup.  Ct.  133,  34  L.  Ed.  708 ;  Lesure  Lumber  Co.  v.  Insurance  Co.,  101  Iowa, 
514,  70  N.  W.  7G1;  Voluntary  Relief  Department  v.  Spencer,  17  Ind.  App. 
123,  46  N.  E.  477;  MILjpS  v.  SCHMIDT.  168  Mass.  339,  47  N.  E.  115;  Fox 
V.  Association,  96  Wis.  390,  71  N.  W.  363;  Mitchell  v.  Dougherty,  90  Fed. 
639,  33  C.  C.  A.  205;  Kant  v.  Rice  (Ky.)  55  S.  W.  202;  Hartford  Fire  Ins. 
Co.  V.  Horr  (Neb.)  92  N.  W.  746.  But  see  Raymond  v.  Insurance  Co.,  114 
Mich.  3SG,  72  N.  W.  2.o4;  Robinson  v.  Templar  Lodge,  117  Cal.  370,  49  Pac. 
170,  59  Am.  St.  Rep.  193. 

179  SCOTT  V.  AVERY,  5  H.  L,  Cas.  811;  Viney  v.  Rignold,  20  Q.  B.  D 
172;  President,  etc.,  of  Delaware  &  H.  Canal  Co.  v.  Coal  Co.,  50  N.  Y.  250; 
HAMILTON  V,  INSURANCE  CO.,  136  U.  S.  242,  10  Sup.  Ct.  945,  34  L.  Ed. 
419;  Holmes  v.  Richet,  56  Cal.  307,  38  Am.  Rep.  54;  Smith  v.  Railroad  Co., 
36  N.  H.  458 ;  Hudson  v.  McCartney,  33  Wis.  331 ;  Pha?nix  Ins.  Co.  v.  Badger, 
53  Wis.  283,  10  N.  W.  504;  Berry  v.  Carter,  19  Kan.  135;  Reed  v.  Insurance 
Co.,  138  Mass.  572;  Hood  v.  Hartshorn,  100  Mass.  117,  1  Am.  Rep.  89;  Denver 
&  N,  O.  Const  Co.  V.  Stout,  8  Colo.  61,  5  Pac.  627;  Commercial  Union  Assur. 
Co.  V.  Hocking,  115  Pa.  407,  8  Atl.  589,  2  Am.  St.  Rep.  562;  Fisher  v.  Insur- 
ance Co.,  95  Me.  486,  50  Atl.  282,  85  Am.  St.  Rep.  428;  National  Contracting 
Co.  V.  Water  Power  Co.,  170  N.  Y.  439,  63  N.  E.  450.  But  see  Phoenix  Ins. 
Co.  T.  Zlotky  (Neb.)  92  N.  W.  736. 

180  See  Stephenson'  v.  Insurance  Co.,  54  Me.  55;  Perry  v.  Cobb,  88  Me. 
435,  34  Atl.  278,  49  L.  R.  A.  380;  Jones  v.  Brown,  171  Mass.  318,  50  N.  E. 
648;  ^ilitchell  v.  Dougherty,  90  Fed.  639,  33  C.  C.  A.  205.  See,  also,  cases 
cited  notes  178,  179. 


\yj^ 


296  LEGALITY   OP  OBJECT.  (Ch.  8 

however,  it  seems  that  such  a  condition  should  be  given  effect  in  the 
one  case  as  in  the  other,  and  that  to  do  so  is  in  no  sense  to  oust  the 
jurisdiction  of  the  court. "^  J  P^<-^-<  t^   Cv 

SAME  —  ENCOURAGEMENT    OF    LITIGATION  —  CHAMPERTY   AI^   ^  n-< 

MAINTENANCE.  ^,-v.^^^Y-^ 

161.  In  most  states  an  agreement  amounting  to  maintenance  or 
champerty  is  considered  contrary  to  public  policy  because  of  its 
tendency  to  encourage  litigation.  In.  some  states,  hoTvever,  the 
doctrine  is  scarcely  recognized.    '  , 

"Maintenance"  is  defined  in  the  old  books  as  the  officious  intermed- 
dling in  a  suit  by  one  who  has  no  interest  therein,  by  maintaining  or 
assisting  either  party,  with  money  or  otherwise,  to  prosecute  or  defend 
it.^^^  "Champerty"  is  defined  as  a  bargain  by  a  person  with  a  plaintiff 
or  defendant  to  divide  the  land  or  other  matter  sued  for  between  them 
if  they  prevail  at  law,  whereupon  the  champertor  is  to  carry  on  the 
party's  suit  or  defense  at  his  own  expense.  In  other  words,  cham- 
perty is  "maintenance  aggravated  by  an  agreement  to  have  a  part  of 
the  thing  in  dispute."  ^^^  Some  courts  have  held  that  the  champertor 
need  not  carry  on  the  suit  at  his  own  expense, — that  it  may  be  where 
an  attorney  agrees  to  conduct  a  suit  for  a  compensation  contingent 
on  success;  ^^*  but  the  weight  of  authority  is  to  the  contrary.  Cham- 
perty and  maintenance  are  held  to  be  crimes  at  common  law  in  England, 
and  are  so  recognized  in  many  states.  In  many  jurisdictions,  how- 
ever, neither  maintenance  nor  champerty  is  recognized  as  a  crime,  but 
they  are  held  to  render  agreements  illegal  on  the  ground  of  public 
policy.  In  some  states  the  doctrine  is  scarcely  recognized  at  all,  the 
courts  considering  that,  because  of  the  difference  in  the  state  of  society 

181  SCOIT  V.  AVERY,  5  H.  L.  C.  811;  COLTJNS  v.  LOCKE,  4  App.  Cas. 
674;  Spackman  v.  Plumstead  Board  of  Works,  10  App.  Cas.  229.  See  "Arbi- 
tration as  a  condition  precedent,"  by  Addison  C.  Bamham,  11  Harv.  L.  R. 
234.  Where  the  rules  or  by-laws  of  an  association  so  provide,  a  member  must 
exbaust  his  remedies  in  its  tribunals  before  resorting  to  the  courts.  Jeane 
V.  Grand  Lodge,  80  Me.  434,  30  Atl.  70;  Smith  v.  Ocean  Castle  No.  11,  59 
N.  J.  Law,  198,  35  Atl.  917;  Whitty  v.  McCarthy,  20  R.  I.  792,  86  Atl.  129; 
Myers  v.  Jenkins,  63  Ohio  St.  101,  57  N.  E.  1089,  81  Am.  St  Rep.  613. 

182  4  Bl.  Comm.  134;    1  Hawk.  P.  C.  249. 

188  4  Bl.  Comm.  135;  1  Hawk.  P.  C.  257;  THOMPSON  v.  REYNOLDS, 
73  111.  11;    Torrence  v.  Shodd,  112  111.  466. 

184  Lathrop  v.  President,  etc.,  9  Mete.  (Mass.)  489;  ACKERT  v.  BARKER, 
]31  Mass.  436.  Contra,  Aultman  v.  Waddle,  40  Kan.  195,  19  Pac.  730;  Phil- 
lips V.  Commissioners,  119  111.  (i2(>,  10  N.  E.  230;  Winslow  v.  Railway  Co., 
71  Iowa,  197,  32  N.  W.  330;  Pittsbmrg,  O.,  G.  &  St.  L.  Ry.  v.  Volkert,  58 
Ohio  St.  302,  50  N.  E.  924. 


§  161)  AGREEMENTS  CONTRARY   TO  PUBLIC   POLICY.  297 

in  England  and  in  this  country,  the  reasons  which  make  the  doctrine 
salutary  or  necessary  there  do  not  exist  here.^*' 

Maintenance. 

"A  contract,"  says  Greenhood,  "by  which  a  stranger  is  to  sustain  the 
expense  of  the  prosecution  or  defense  of  litigation,  especially  when  he 
is  to  have  an  interest  in  the  result  thereof,  is  void ;"  and  the  rule  thus 
laid  down  is  sustained  by  numerous  cases,  both  in  England  and  in  this 
country. ^^^ 

Illustrations  of  maintenance  are  where  a  stranger  to  a  cause  of 
action  induces  the  person  who  has  the  right  of  action  to  sue  by  prom- 
ising to  save  him  harmless  from  any  liability  for  costs,  or  to  pay  the 
costs  in  case  of  failure  in  the  action.^"  It  has  generally  been  deemed 
necessary,  in  order  to  avoid  a  contract,  that  there  should  be  something 
vexatious  in  the  maintenance,  and  that  mere  assistance  was  not  enough ; 
that  maintenance  "is  confined  to  cases  where  a  man  improperly,  and 
for  the  purpose  of  stirring  up  litigation  and  strife,  encourages  others 
either  to  bring  actions  or  to  make  defenses  which  they  have  no  right 
to  make."  ^^®  This  is  probably  the  general  rule  in  this  country  where 
the  doctrine  of  maintenance  is  recognized  at  all.^^® 

It  is  not  maintenance  for  a  person  to  assist  another  in  litigation,  if 
he  is  himself  interested  in  the  subject  of  the  litigation,^ ®°  or  if  he  in 

185  Richardson  v.  Rowlind,  40  Conn.  565;  Stoddard  v.  Mix,  14  Conn.  12; 
Brown  v.  Bigne,  21  Or.  200,  28  Pac.  11,  14  L,.  R.  A.  745,  28  Am.  St.  Kep.  752; 
Bayard  v.  McLaue,  3  Har.  (Del.)  139;  Schamp  v.  Sclienck,  40  N.  J.  Law, 
195,  29  Am.  Rep.  219;  Hoffman  v.  Vallejo,  45  Cal.  5G4;  Bentinck  v.  Franklin, 
38  Tex.  458;  Sherley  v.  Riggs,  11  Humph.  (Tenn.)  53.  The  common  law  In  re- 
lation to  champerty  has  been  virtually  abolished  or  superseded  by  statute 
in  several  states.  Wildey  v.  Crane,  63  Mich.  720.  30  N.  W.  327;  Heaton  v. 
Dennis,  103  Tenn.  155,  52  S.  W.  175;  Potter  v.  Mining  Co.,  22  Utah,  273, 
61  Pac.  999.  In  New  York  it  is  abolished,  except  in  so  far  as  it  is  em- 
bodied in  statutes  in  reference  to  certain  cases  affecting  -the  title  to  lands, 
and  prohibiting  the  purchase  of  claims  bj*  attorneys  for  the  purpose  of  suing 
on  them.  See  Bundy  v.  Newton,  65  Hun,  019.  19  N.  Y.  Supp.  734;  FOWLER 
V.  CALLAN,  102  N.  Y.  395,  7  N.  E.  109;  Coughlin  v.  Railroad  Co.,  71  N. 
Y.  443,  27  Am.  Rep.  75;   Oisher  v.  Lazzarone,  61  Hun,  623.  15  N.  Y.  Supp.  933. 

186  Greenh.  Pub.  Pol.  rule  324;  HUTLEY  v.  HUTLEY,  L.  R.  8  Q.  B.  112; 
Kerr  v.  Bnmton,  24  U.  C.  Q.  B.  390;  Knox  v.  Martin,  8  N.  H.  154.  And  see 
the  cases  in  the  following  notes. 

187  Wheeler  v.  Pounds,  24  Ala.  472;  Low  v.  Hutchinson,  37  Me.  196;  Mar- 
tin V.  Amos,  35  N.  C.  201. 

188  Findon  v.  Parker,  11  Mees.  &  W.  682.  Cf.  Bradlaugh  v.  Newdegate,  11 
Q.  B.  Div.  10. 

189  See  Ferine  v.  Dunn,  3  Johns.  Ch.  (N.  Y.)  508;  Thallhimer  v.  Brincker- 
hoff,  3  Cow.  (N.  Y.)  023,  15  Am.  Dec.  308;  Duke  v.  Harper,  66  Mo.  51,  37  Am. 
Rep.  314;  McCall's  Adm'r  v.  Capehart,  20  Ala.  521;  Com.  v.  Dupuy,  Brightly, 
N.  P.  (Pa.)  44. 

190  Williams  v.  Fowle,  132  Mass.  385;  Knight  v.  Sawin,  6  Groenl.  (Me.) 
301;  Inhabitants  of  Industry  v.  Inhabitants  of  Starks,  65  Me.  107;   HUTLEY 


298  LEGALITY  OF  OBJECT.  (Ch.  8 

good  faith  believes  that  he  is  so  interested/^^  or  if  he  is  a  near  relative 
of  the  litigant;  ^°'  nor,  it  seems,  for  a  person  to  assist  one  who  has  a 
good  cause  of  action,  and  is  too  poor  to  sue.^"^  He  must  assist,  how- 
ever, because  of  such  interest  or  relationship/** 

Champerty. 

Champerty,  or  the  maintenance  of  a  suit  for  a  share  of  the  proceeds, 
avoids  an  agreement  made  in  contemplation  of  it."^  A  frequent  in- 
stance of  champerty  is  where  an  attorney  agrees  to  conduct  litigation, 
and  pay  the  costs,  in  consideration  of  a  certain  part  of  whatever  he  may 
recover.  Most  of  the  courts  hold  such  an  agreement  illegal. ^^"^  "But 
where  the  right  to  compensation  is  not  confined  to  an  interest  in  the 

V.  HUTLEY,  L.  R.  8  Q.  B.  112;  Board  of  Com'rs  of  Bartholomew  County 
T.  Jameson,  80  Ind.  154;  Cooley  v.  Osborne,  50  Iowa,  526.  It  is  not  main- 
tenance for  several  to  contribute  to  the  expense  of  a  suit  by  one  where  all 
have  a  common  interest  in  settling  the  question  as  to  defendant's  liability. 
Davies  v.  Stowell,  78  Wis.  334,  47  N.  W.  370,  10  L.  R.  A.  100. 

191  Lewis  V.  Broun,  36  W.  Va.  1,  14  S.  E.  444;  Wellington  v.  Kelly,  84 
N.  Y.  543;   Findon  v.  Parker,  11  Mees.  &  AV.  679. 

192  Thallhimer  v.  Brinckerhoff,  3  Cow.  (N.  Y.)  623,  15  Am.  Dec.  308;  Gille- 
land  V.  Failing,  5  Denio  (X.  Y.)  308;  Moms  v.  Henderson,  37  Miss.  492; 
Walker  v.  Ferryman,  23  Ga.  309,  at  page  316.  See  Graham  v.  McReynolds, 
90  Tenn.  673,  18  S.  W.  272.  But  see  Barnes  v.  Strong,  54  N.  C.  100;  HUT- 
LEY  V.  HUTLEY,  L.  R.  8  Q.  B.  112. 

193  Dunne  v.    Herrick,   37   111.   App.    180. 

194  Greeuh.  Tub.  Pol.  p.  401. 

195  Gilbert  v.  Holmes,  64  111.  548;  Coleman  v.  Billings,  89  111.  183;  Munday 
y.  Whissenhunt,  90  N.  C.  458;  Slade  v.  Rhodes.  22  N.  C.  24;  Barnes  v. 
Strong,  54  N.  C.  100;  Thompson  v.  Warren,  8  B.  Mon.  (Ky.)  488;  Hayney 
V.  Coyne,  10  Heisk.  (Tenn.)  339;  Jenkins  v.  Bradford,  59  Ala.  400;  Martin 
V.  Yeeder,  20  Wis.  466;  Barker  v.  Barker,  14  Wis.  131;  Duke  v.  Harper, 
66  Mo.  51,  37  Am.  Rep.  314;  Stanley  v.  Jones,  7  Bing.  369;  Sprye  v.  Porter, 
7  El.  &  Bl.  81. 

196  THOMPSON'  V.  REYNOLDS,  73  111.  11;  Holloway  v.  Lowe,  7  Port. 
(Ala.)  4&S;  Coughlin  v.  Railroad  Co.,  71  N.  Y.  443,  27  Am.  Rep.  75;  Lancy 
V.  Havender,  146  Mass.  615,  16  N.  E.  464;  Boardman  v.  Thompson,  25  Iowa, 
487;  Evans  v.  Bell,  6  Dana  (Ky.)  479;  Million  v.  Ohnsorg,  10  Mo.  App.  432; 
Scobey  v.  Ross,  13  Ind.  117;  Lafferty  v.  Jelley,  22  Ind.  471;  Hamilton  v. 
Gray,  67  Vt.  233i,  31  Atl.  315,  48  Am.  St.  Rep.  811;  Geer  v.  Frank,  179  111. 
570,  53  N.  E.  965,  45  L.  R.  A,  110;  In  re  Evans,  22  Utah,  366,  62  Pac.  913, 
53  L.  R.  A.  952,  83  Am.  St.  Rep.  794;  Casserleigh  v.  Wood,  119  Fed.  308, 
56  C.  C.  A.  212.  It  has  even  been  held  that,  where  the  attorney  has  received 
money  under  such  an  agreement  for  his  client,  the  latter  cannot  maintain 
an  action  to  recover  it.  Best  v.  Strong.  2  Wend.  (N.  Y.)  319,  20  Am.  Dec. 
607.  Contra,  ACKERT  v.  BARKER,  131  Mass.  436;  Stearns  v.  Felker,  28 
Wis.  594.  A  contract  whereby  the  client  is  bound  not  to  settle  without  the 
consent  of  the  attorney  is  void.  Huber  v.  Johnson,  68  Minn.  74,  70  N.  W. 
806,  64  Am.  St.  Rep.  456;  North  Chicago  St.  R.  Co.  v.  Ackley,  171  111.  100, 
49  N.  E.  222,  44  L.  R.  A.  177;  Davis  v.  Webber,  06  Ark.  190,  49  S.  W.  822, 
45  L.  R.  A.  196,  74  Am.  St.  Rep.  81;  Davis  v.  Chase,  159  Ind.  242,  64  N. 
E.  S8.     Sec,  also,  Potter  v.  Mining  Co.,  22  Utah,  273,  61  i'ac.  999. 


t 


§  161)  AGREEMENTS   CONTRARY   TO    PUBLIC    POLICY.  209 

thing  recovered,  but  gives  a  right  of  action  against  the  party,  though 
pledging  the  avails  of  the  suit,  or  part  of  them,  as  security  for  the  pay- 
ment, the  agreement  is  not  champertous."  ^°'' 

A  less  obvious  form  of  champerty  is  in  the  case  of  a  purchase  out 
and  out  of  a  right  of  action.  The  validity  of  such  an  agreement  would 
depend  on  whether  the  purchase  included  any  substantial  interest  be- 
yond a  mere  right  to  litigate.  If  property  is  bought  to  which  a 
right  to  sue  attaches,  that  fact  will  not  avoid  the  contract,^°*  but  an 
agreement  to  purchase  a  bare  right  to  sue  would  not  be  sustained.^ ^" 
"It  is  not  unlawful  to  purchase  an  interest  in  property,  though  adverse 
claims  exist  which  make  litigation  necessary  for  realizing  that  interest, 
but  it  is  unlawful  to  purchase  an  interest  merely  for  the  purpose  of 
litigation ;  in  other  words,  the  sale  of  an  interest  to  which  a  right  to 
sue  is  incident  is  good,  but  the  sale  of  a  mere  right  to  sue  is  bad."  ^°° 

As  we  have  stated  above,  it  is  not  regarded  as  maintenance  for  a 
near  relative  to  assist  a  person  in  litigation.  This  rule,  however,  does 
not  apply  to  champerty.  Not  even  a  relative  can  assist  for  a  share  of 
the  recovery.  "Lineal  kinship  in  the  first  degree,  or  apparent  heirship, 
and  to  a  certain  extent,  it  seems,  any  degree  of  kindred  or  affinity,  or 
the  relation  of  master  and  servant,  may  justify  acts  which,  as  between 
strangers,  would  be  maintenance;  but  blood  relationship  will  not 
justify  champerty."  ^°^ 

It  should  be  noted  that  the  defense  of  champerty  or  maintenance 
cannot  be  set  up  to  defeat  a  recovery  on  the  cause  of  action  to  which 


197  BLAISDELL  v.  AHEEN,  144  Mass.  393.  11  N.  E.  G81.  See,  also,  Mc- 
Pherson  v.  Cox,  96  U.  S.  404,  24  L.  Ed.  74G;  Hadlock  v.  Brooks,  17S  Mass. 
425.  59  N.  E.  1009.  Coutra,  Huber  v.  Johnson,  68  Minn.  74,  70  N.  W.  806, 
64  Am.  St.  Kep.  456.  The  rules  governing  champerty  are  not  applicable 
to  the  prosecution  of  a  claim  otherwise  than  by  suit.  Manning  v.  Sprague, 
148  Mass.  18,  18  N.  E.  673,  1  L.  R.  A.  516,  12  Am.  St.  Rep.  508  (court  of  com- 
missioners of  Alabama  claims).  See,  also,  Stanton  v.  Embrey,  93  U.  S.  548, 
23  L.  Ed.  9S3;   Taylor  v.  Bemiss,  110  U.  S.  42,  3  Sup.  Ct.  441,  28  L.  Ed.  64. 

198  Dickinson  v.  Bun-ell,   1   Eq.  337,  342. 

199  Prosser  v.  Edmonds,  1  Younge  &  C.  499;  Norton  v.  Tuttle,  60  111.  130; 
Brush  X.  Sweet,  38  Mich.  574;  Illinois  Land  &  Ix)au  Co.  v.  Speyer,  138  111. 
137,  27  N.  E.  931;  Storrs  v.  Hospital,  180  111.  368,  54  N.  E.  185,  72  Am.  St. 
Rep.  211;  Mihvauicee  &  St.  P.  R.  Co.  v.  Railroad  Co.,  20  Wis.  174,  88  Am. 
Dec.  740;  Archer  v.  Freeman,  124  Cal.  528.  57  Pac.  474;  Haseltine  v.  Smith, 
154  Mo.  404,  55  S.  W.  633;  Miles  v.  Association  (Wis.)  iW  N.  W.  159.  See 
Greenhood,  Pub.  Pol.  pp.  409-411.  Conveyance  of  land  held  adversely  by 
another.  Smith  v.  Price  (Ky.)  7  S.  W.  918;  Combs  v.  McQuinn  (Ky.)  9  S. 
W.  495;  Nelson  r.  Brush,  22  Fla.  374;  Snyder  v.  Church,  24  N.  Y.  Supp. 
337,  70  Hun,  42.S. 

2  00  Pol.  Cont.   (3d  Ed.)  315. 

201  Pol,  Cont.  (3d  Ed.)  .320;  HUTT-EY  v.  HITTLEY.  L.  R.  8  Q.  B.  112;  In 
re  Evans,  22  Utah,  366,  62  Pac.  913,  53  L.  K.  A,  952,  83  Am.  St.  Kep.  794. 


300  LEGALITY  OF  OBJECT.  (Ch.  8 

the  illegal  agreement  relates.     It  can  only  be  set  up  against  the  en- 
forcement of  the  illegal  agreement  itself.^**^ 

SAME— AGREEMENTS   OF   IMMORAL   TENDENCY. 

162.    Any  agreement  which  is  contrary  to  established  rules  of  decency 
and  morality  is  contrary  to  public  policy. 

Agreements  which  are  contrary  to  established  rules  of  decency  and 
morality,  though  the  acts  to  which  they  tend  may  not  be  prohibited  in 
the  sense  of  rendering  the  doer  liable  to  a  penalty,^"'  will  not  be  en- 
forced. Unlawful  sexual  intercourse  is  not  a  crime  at  common  law 
unless  it  is  open  and  notorious,  but  any  unlawful  sexual  intercourse  is 
contra  bonos  mores.  A  promise,  therefore,  given  in  consideration  of 
present  or  future  illicit  cohabitation  or  intercourse,  is  void;  2°*  and 
it  is  immateral,  in  such  case,  whether  the  contract  is  by  parol  or  under 
seal,  for,  as  we  have  seen,  though  no  consideration  is  necessary  to 
support  a  promise  under  seal,  yet,  if  there  is  a  consideration,  its  ille- 
gality will  avoid  the  contract. 

A  promise  made  in  consideration  of  past  illicit  cohabitation  is  not 
generally  held  to  be  made  on  an  illegal  consideration,  but  is  a  mere 
gratuitous  promise,  because  the  consideration  is  past,  and  is  not  en- 

202  Burnes  v.  Scott.  117  U.  S.  582,  6  Sup.  Ct.  8G.j,  29  U  Ed.  991;  Tliallhimer 
V.  Brinckei-lioff,  3  Cow.  (N.  Y.)  «23,  15  Am.  Dec.  308;  Boone  v.  Chiles,  10 
Piet.  177,  9  L.  Ed.  388;  Whitney  v.  Kirtland,  27  N.  J.  Eq.  333;  Hilton  v. 
Woods,  L.  R.  4  Eq.  432;  Courtright  v.  Burnes  (C.  C.)  3  McCrary,  60,  13 
Fed.  317;-  Pennsylvania  Co.  v.  Lombardo,  49  Ohio  St.  1,  29  N.  E.  573,  14 
L.  R.  A.  785;  SMALL  v.  RAILROAD  CO.,  55  Iowa,  583,  8  N.  W.  437; 
Chamberlain  v.  Grimes,  42  Neb.  701,  60  N.  W.  948;  Davis  v.  Settle,  43  W. 
Va.  17,  26  S.  E.  557;  Potter  v.  Mining  Co.,  22  Utah,  273,  61  Pac.  999; 
Ellis  V.  Smith,  112  Ga.  480,  37  S.  E.  739.  Contra,  Barker  v.  Barker,  14  Wis. 
131;  Allard  v.  Lamirande,  29  Wis.  502;  Heaton  v.  Dennis,  103  Tenn.  155, 
52  S.  W.  175;  Miles  v.  Association,  108  Wis.  421,  84  N.  W.  159.  See,  also, 
The  Clara  A.  ISIcIutyre  (D.  C.)  94  Fed.  552  (distinguishing  Barnes  v.  Scott, 
supra,  on  ground  that  here  suit  was  in  name  of  champertor  to  whom  note 
and  mortgage  had  been  assigned). 

20  3  A  policy  obtained  by  one  on  his  own  life,  payable  to  himself,  his  ex- 
ecutors, administrators,  or  assigns,  which  is  silent  on  the  subject  of  suicide, 
becomes  void  if  the  insured  commits  suicide  when  sane,  both  from  the  pre- 
sumed intention  of  the  parties  and  from  principles  of  public  policy.  Ritter 
V.  Insurance  Co..  169  U.  S.  139,  18  Sup.  Ct.  300,  42  L.  Ed.  693. 

20-1  Ayerst  v.  Jenkins,  16  Eq.  275;  Wallace  v.  Rappleye,  103  111.  229;  Walker 
V.  Perkins,  3  Bm-rows,  1568;  Baldy  v.  Sti-atton,  11  Pa.  316;  Massey  v.  Wal- 
lace, 32  S.  C.  149,  10  S.  E.  937;  Drennan  v.  Douglas,  102  111.  341,  40  Am.  Rep. 
595;  Hanks  v.  Naglee,  54  Cal.  51,  35  Am.  Rep.  07;  Forsythe  v.  State,  6  Ohio. 
20;  Walker  v.  Gregory,  30  Ala.  180;  De  Sobry  v.  De  Laistre,  2  Har.  &  J. 
(Md.)  191,  3  Am.  Dec.  555;  Goodall  v.  Thurman,  1  Head  (Tenn.)  209;  Saxon 
V.  Wood,  4  lud.  App.  242,  30  N.  E.  797. 


§  163)  AGREEMENTS   CONTRARY   TO   PUBLIC  POLICY.  301 

forceable  if  made  by  parol,  though  it  is  binding  if  made  under  seal.^*"* 
It  has  been  held  that,  if  the  past  illicit  cohabitation  was  accompanied 
by  seduction,  there  is  sufficient  consideration  to  support  a  parol  prom- 
ise ;  ^"^  but  this  is  contrary  to  the  well-settled  doctrine  that  a  moral 
obligation  is  no  consideration  for  a  promise,  and  the  weight  of  au- 
thority is  the  other  way.^*'^ 

An  agreement  may  be  innocent  in  itself,  but  may  be  intended  to 
further  an  immoral  purpose.  The  effect  of  such  agreements  will  be 
considered  later.-**^ 


4- 

SAME— AGREEMENTS  TENDING  TO  FRAUD  AND  BREACH  OF 
/  TRUST. 


-^ 


V 


163.  Any  agreement  tvliicli  lias  a  direct  tendency  to  indnce  a  person  to 
commit  a  fraud  npon  the  rights  of  others,  or  a  breach  of  trust 
and  confidence,  is  illegal  as  being  contrary  to  public  policy. 

"Contracts,"  it  has  been  said,  "which  are  opposed  to  open,  upright, 
and  fair  dealings,  are  opposed  to  public  policy.  A  contract  by  which 
one  is  placed  under  a  direct  inducement  to  violate  the  confidence  re- 
posed in  him  by  another  is  of  this  character,  *  *  *  The  law  will 
not  only  avoid  contracts,  the  avowed  purpose  or  express  object  of 
which  is  to  do  an  unlawful  act,  but  those  made  with  a  view  to  place, 
or  the  necessary  effect  of  which  is  to  place,  a  person  under  wrong 
influences,  and  offer  him  a  temptation  which  may  injuriously  affect  the 
rights  of  third  persons."  ^°®     Although  the  act  contracted  to  be  done 

20  5  Gray  v.  Matliias,  5  Ves.  286;  BEAUMONT  v.  REEVE,  8  Q.  B.  483;  Con- 
ley  V.  Nailor,  118  U.  S.  127.  G  Sup.  Ct.  1001,  30  L.  Ed.  112;  BKOWM  v.  KIN- 
SEY,  81  N.  C.  245;  Alassey  v.  Wallace,  32  S.  C.  149,  10  S.  E.  937;  Bunn  v. 
Winthrop,  1  Johns.  Ch.  (N.  Y.)  329;  Wyant  v.  lusher,  23  Ta.  338.  But  see 
Wallace  v.  Rappleye,  103  111.  229,  at  page  249;  McDonald  v.  Fleming,  12  B. 
aion.  (Ky.)  285. 

206  Smith  V.  Richards,  29  Conn.  232;  Shenk  v.  Mingle,  13  Serg.  &  R. 
(Pa.)  29. 

2  07  Ante,  pp.  1D8,  142. 

20  8  Post,  p.  327. 

209  Greenh.  Pub.  Pol.  294;  Edwards  v.  Estell,  48  Cal.  194;  Byrd  v.  Hughes, 
84  111.  174,  25  Am.  Rep.  442;  Forsyth  v.  Woods,  11  Wall.  484,  20  L.  Ed. 
207;  Rice  v.  Williams  (C.  C.)  32  Fed.  437;  Gleason  v.  Railroad  Co.  (Iowa) 
43  N.  W.  517;  Smith  v.  Humphreys,  88  Me.  345,  34  Atl.  166.  A  contract  made 
by  a  person  in  contemplation  of  becoming  an  othcer  in  a  private  corporation, 
and  controlling  a  majority  of  its  stock,  that  he  will  use  his  influence  to  retain 
another  in  office  at  a  fixed  salarj',  is  void  as  against  public  policy,  being  in- 
consistent with  the  duty  that  the  promisor,  as  an  officer,  owes  to  tlie  stock- 
holders, though  no  direct  private  gain  is  to  result  therefrom  to  him.  West 
V.  Camden,  135  U.  S.  507,  10  Sup.  Ct.  838.  34  L.  Ed.  254;  Gage  v.  Fisher,  5 
N.  D.  297,  G5  X.  W.  809,  31  L.  R.  A.  557.     For  other  instances  of  illegal  con- 


302  LEGALITY   OF   OBJECT.  (Cll.  8 

"may  be  just  and  beneficial  as  between  the  parties  immediately  con- 
cerned in  it,  and  though  it  be  accomplished  in  good  faith  and  without 
undue  means,  yet  the  contract  to  procure  to  be  done  is  held  to  be 
against  public  policy,  because  its  natural  effect  is  to  cause  the  party  to 
abuse  the  confidence  placed  in  him,  *  *  *  and  thereby  preju- 
dicially to  affect  the  rights  of  others."  ^^°  It  is  impossible  to  go  fur- 
ther into  the  various  rules  growing  out  of  this  principle.  They  have 
been  admirably  stated,  and  the  illustrations  and  authorities  collected, 
bv  Greenhood  in  his  work  on  Public  Policy.^^^ 


SAME— AGREEMENTS  IN  DEROGATION  OF  THE  MARRIAGE 

RELATION. 

164.  As  a  general  rule,  any  agreement  vrliich  restrains  the  freedom  of 
parties  to  marry,  or  the  freedom  of  choice  in  marrying,  or  im- 
pairs the  sanctity  and  security  of  the  marriage  relation,  or  is 
other\irise  in  derogation  of  such  relation,  is  contrary  to  puhlic 
policy. 

Agreements  which  restrain  the  freedom  of  marriage  are  discouraged 
on  political  and  social  grounds,  as  injurious  to  the  increase  of  popula- 

tracts  by  officers  of  corporations,  see  Wilbur  v.  Stoepel,  82  Mich.  344,  40  N. 
W.  724,  21  Am.  St.  Rep.  568;  Attaway  v.  Bank,  93  Mo.  485,  5  S.  W.  16;  Lum 
T.  McEwen,  56  Minn.  278,  57  N.  W.  662;  GUERNSEY  v.  COOK,  120  Mass. 
501;  Diclvson  v.  Kittson,  75  Minn.  168,  77  N.  W.  820,  74  Am.  St.  Rep.  447. 
It  tends  to  a  fraud  on  a  corporation  for  its  officers  to  purchase  claims  against 
it,  and  a  contract  for  such  a  purchase  cannot  be  enforced.  McDonald  v. 
Haughton,  70  N.  C.  .393.  A  good  illustration  of  such  an  agreement  is  where 
a  broker  employed  to  sell  property  is  also  employed  by  the  person  to  whom 
he  sells  to  buy,  thus  to  receive  a  commission  from  both  parties.  Rice  v. 
Wood,  113  Mass.  133,  18  Am.  Rep.  459;  Everhart  v.  Searle,  71  Pa.  256.  And 
see  HOLCOMB  v.  WEAVER,  136  Mass.  265.  So,  also,  where  a  broker  is 
employed  to  sell  land,  an  agreement  with  a  person  who  wishes  to  buy,  by 
which  the  broker  is  to  introduce  him  to  the  principal,  and  receive  part  of  the 
land  when  purchased,  is  void.  Smith  v.  Townsend,  109  Mass.  500.  An 
agreement  between  real-estate  agents  representing  different  principals  to 
divide  commissions  in  case  they  effect  sale  is  void.  Levy  v.  Spencer,  18  Colo. 
532,  33  Pac.  415,  36  Am.  St.  Rep.  303.  See  Tiffany,  Ag.  415  et  seq.  An 
agreement  by  a  client  releasing  his  attorney  from  all  the  duties  of  the  re- 
lationship is  void.  In  re  Boone  (C.  0.)  83  Fed.  944.  A  stipulation  in  a  contract 
that  false  representations  used  in  procuring  it  shall  not  affect  its  validity  is 
itself  invalid.     Hofflin  v.  Moss,  07  Fed.  440,  14  C.  C.  A.  459. 

210  Spiuks  V.  Davis,  32  Miss.  152.  See,  also,  Harrington  v.  Dock  Co.,  3 
Q.  B.  Div.  549;  Atlee  v.  Fink,  75  Mo.  100,  43  Am.  Rep.  3<S5.  The  rule  does  not 
apply  to  a  case  in  which  a  broker  is  acting  as  agent  of  both  parties  with 
their  knowledge.  Greenhood,  Pub.  Pol.  Rule  262;  Shaw  v.  Andrews,  9 
Cal.  73;  Pugsley  v.  Murray,  4  E.  D.  Smith  (N.  Y.)  245;  Bonwell  v.  Howes 
(City  Ct.  N.  Y.)  1  N.  Y.  Supp.  435;  Bell  v.  McConnell,  37  Ohio  St  396,  41  Am. 
Rep.  528. 

211  Greenh.  Pub.  Pol.  pp.  292-326. 


§  164)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY.  303 

tion  and  the  moral  welfare  of  the  citizen.  Agreements  not  to  marry 
are  therefore  void.  A  promise  to  marry  no  one  but  the  promisee,  for 
instance,  on  penalty  of  paying  her  a  certain  sum,  has  been  held  void 
because  there  was  no  promise  of  marriage  on  either  side,  and  the 
agreement  was  purely  restrictive.^^^  So,  also,  a  wager  in  which  one 
man  bet  another  that  he  would  not  marry  within  a  certain  time  was 
held  void,  as  giving  to  one  of  the  parties  a  pecuniary  interest  in  not 
marrying.  ^^^ 

Contracts  restraining  the  freedom  of  choice  in  entering  into  a  mar- 
riage, such  as  marriage  brocage  contracts,  or  promises  made  upon  con- 
sideration of  the  procuring  or  bringing  about  of  a  marriage,  are  held 
illegal  on  social  grounds.^^* 

Agreements  are  also  contrary  to  public  policy  if  they  directly  tend 
to  disturb  or  prejudice  the  status  of  a  lawful  marriage  after  it  has 
been  entered  into.  Agreements  for  separation  of  husband  and  wife 
are  valid  if  made  in  prospect  of  an  immediate  separation;  ^^"^  but  if 
they  provide  for  a  possible  separation  in  the  future  they  are  illegal, 
and  it  is  immaterial  whether  they  are  made  before  or  after  marriage, 
because  they  give  inducements  to  the  parties  not  to  perform  "duties  in 
the  fulfillment  of  which  society  has  an  interest."  ^^®     "An  agreement 

212  Lowe  V.  Peers,  4  Burrows,  2225.  See  Hogan  v.  Curtin,  88  N.  Y.  162, 
42  Am.  Rep.  244.  Where  a  contract  to  care  for  another  during  his  life,  and 
not  to  marry,  is  performed,  it  will  be  enforced,  notwithstanding  that  the 
promise  not  to  marry  Is  void.  KING  v.  KING,  63  Ohio  ISt.  363,  59  N.  E.  Ill, 
52  L.  R.  A.  157,  81  Am.  St.  Rep.  635. 

213  Hartley  v.  Rice,  10  East,  22.  And  see  Chalfant  v.  Tayton,  91  Ind.  202, 
46  Am.  Rep.  586;  James  v.  Jellison,  94  Ind.  292,  48  Am.  Rep.  151;  STERLING 
V.  SINNICKSON,  5  N.  J.  Law,  756;  Bostick  v.  Blades,  59  Md.  231,  43  Am. 
Rep.  548.     But  see  Shafer  v.  Senseman,  125  Pa.  310,  17  All.  350. 

214  Arundel  v.  Trevillian,  Rep.  Ch.  47;  Crawford  v.  Russell,  62  Barb. 
(N.  Y.)  92;  DUVAL  v.  WELLMAN  (Com.  PI.  N.  Y.)  1  N.  Y.  Supp.  70; 
Id.,  124  N.  Y.  156,  26  N.  E.  343;  Johnson's  Adm'r  v.  Hunt,  81  Ky.  321.  A 
promise  by  one  engaged  to  pay  another  if  he  induces  the  other  party  to  the 
engagement  to  marry  the  pi'omisor  is  void.  Morrison  v.  Rogers,  115  Cal.  252, 
46  Pac.  1072,  56  Am.  St.  Rep.  95. 

215  Hunt  V.  Hunt,  4  De  Gex,  F.  &  J.  221;  Fox  v.  Davis,  113  Mass.  255, 
18  Am.  Rep.  476;  Brown  v.  Brown,  5  Gill  (Md.)  249;  Jenkins  v.  Hall,  26  Or. 
79,  37  Pac.  62;  Walker  v.  Walker,  9  Wall.  743,  19  L.  Ed.  814;  Helms  v. 
Franciscus,  2  Bland  (Md.)  544,  20  Am.  Dec.  402;  Wells  v.  Stout,  9  Cal.  479; 
Com.  V.  Richards,  131  Pa.  209,  IS  Atl.  1007;  Rains  v.  AVheeler,  76  Tex.  390, 
13  S.  W.  324;  Clark  v.  Fosdick,  118  N.  Y.  7,  22  N.  E.  1111.  6  L.  R.  A.  132, 
16  Am.  St.  Rep.  733;  Carey  v.  Mackey,  82  Me.  516,  20  Atl.  SI,  9  L.  R  A. 
113,  17  Am.  St.  Rep.  50O;  Grime  r.  Borden,  166  Mass.  198,  44  N.  BL  216. 
Contra,  Baum  v.  Baum,  109  Wis.  47,  8.3  X.  W.  122,  53  L.  R.  A.  050,  83  Am.  St. 
Rep.  854;  Foote  v.  Nickerson,  70  N.  H.  496,  48  Atl.  1088,  54  L.  R.  A.  554. 
Cf.  Boland  v.  O'Neil,  72  Conn.  217,  44  Atl.  15. 

218  Cartwright  v.  Cartwright,  3  De  Gex,  M.  &  G.  982;  Westmeath  v.  West- 
meath,  1  Dow.  &  C.  519;  Randall  v.  Randall,  37  Mich.  563;  Brun  v.  Brun, 
64  Neb.  782,  90  N.  W.  860.    And  see  cases  in  preceding  note. 


304  LEGALITY  OF  OBJECT.  (Ch.  8 

for  an  immediate  separation  is  made  to  meet  a  state  of  things  which, 
however  undesirable  in  itself,  has  in  fact  become  inevitable.  *  *  * 
To  allow  validity  to  provisions  for  a  future  separation  would  be  to 
allow  the  parties  in  effect  to  make  the  contract  of  marriage  determi- 
nable on  conditions  fixed  beforehand  by  themselves."  ^^'^ 

To  obtain  a  divorce  by  collusion  is  not  only  an  evasion  of  justice, 
but  is  contrary  to  public  policy,  as  being  in  derogation  of  the  marriage 
relation ;  and  any  agreement,  therefore,  between  husband  and  wife,  in 
consideration  of  one  of  them  withdrawing  or  not  making  opposition 
to  a  suit  for  divorce  brought  by  the  other,  is  void.  This  applies  to  any 
agreement  intended  to  facilitate  the  procuring  of  a  divorce.^^^  It  has 
been  held  in  a  late  Massachusetts  case  that,  where  a  wife  has  separated 
from  her  husband  on  grounds  justifying  a  suit  for  divorce,  an  agree- 
ment, for  a  pecuniary  consideration,  not  to  proceed  against  him  for 
divorce  and  alimony,  and  to  return  and  live  with  him,  is  contrary  to 
public  policy.-^® 

It  has  also  been  held  that  contracts  between  husband  and  wife  regu- 
lating their  duties  and  conduct  in  matters  pertaining  directly  and  ex- 
clusively to  the  home  cannot  be  made  the  subject  of  public  inquiry, 
and  that  it  is  contrary  to  public  policy  to  recognize  and  enforce  them.^^° 

21 T  Pol.  Cont.  (3cl  Ed.)  2S6. 

218  Besant  v.  Wood,  12  Ch.  Div.  623;  Hamilton  v.  Hamilton,  89  111.  349; 
Stoutenburg  v.  Lybvand,  13  Ohio  St.  228;  Muckenbnrg  v.  Holler,  29  Ind.  139, 
92  Am.  Dec.  345;  Wilde  v.  Wilde,  37  Neb.  891,  56  N.  W.  724;  Comstock  v. 
Adams,  23  Kan.  513,  33  Am.  Rep.  191;  Viser  v.  Bertrand,  14  Ark.  267; 
Adams  v.  Adams.  25  Minn.  72;  Stokes  v.  Anderson,  118  Ind.  533,  21  N.  E. 
331,  4  L.  R.  A.  313;  Newman  v.  Freitas,  129  Cal.  2SS,  61  Pac.  907,  50  L.  R. 
A.  548.  An  agreement  between  a  man  and  his  wife,  made  tlie  day  after  he 
has  been  awarded  a  decree  of  divorce,  to  pay  an  annuity  if  she  will  not 
move  for  new  trial,  is  void.  Blank  v.  Nohl  (Mo.)  19  S.  W.  65;  Id.,  112  Mo. 
159,  20  S.  W.  477,  18  D.  R,  A.  350.  Contract  by  wife  not  to  sue  for  alimony 
for  a  year  is  void.  Evans  t.  Evans,  93  Ky.  510,  20  S.  W.  605.  If  the 
promisee  is  ignorant  of  the  fact  that  the  promisor  is  already  married,  she 
may  maintain  an  action  against  htm  for  breach  of  his  promise.  See  Pad- 
dock v.  Robinson,  63  111.  99,  14  Am.  Rep.  112;  Haviland  v.  Halstead,  34  N. 
Y.  643;  Cammerer  v.  Muller,  60  Hun,  578,  14  N.  Y.  Supp.  511;  Id.,  133  N.  Y. 
623,  30  N.  E.  1147;  Kerns  v.  Hagenbuchle  (Super.  N.  Y.)  17  N.  Y.  Supp.  367. 
Promise  to  marry  on  death  of  divorced  wife  held  valid.  Brown  v.  Odill, 
104  Tenn.  250,  56  S.  W.  840,  52  L.  R.  A.  660,  78  Am.  St.  Rep.  914. 

219  MERRILL  V.  PEASLEE,  146  Mass.  4G0.  16  N.  E.  271,  4  Am.  St.  Rep. 
334  (Holmes,  Allen,  and  Knowlton,  JJ.,  dissenting).  And  see,  contra,  Barbour 
V.  Barbour,  49  N.  J.  Eq.  429.  ^  Atl.  227. 

220  A  contract  between  husband  and  wife  to  drop  matter's  in  dispute,  refrain 
from  scolding,  fault-finding,  and  anger,  and  live  together  as  husband  and 
wife;  that  the  wife  should  keep  her  home  in  a  comfortable  condition;  and 
that  the  husband  provide  necessary  expenses,  and  pay  the  wife  a  certain 
sum  per  month,  held  illegal.  Miller  v.  Miller,  78  Iowa,  177,  35  N.  W.  464,  42 
X.  W.  641,  16  Am.  St.  Rep.  431. 


§§  165-169)      AGREEMENTS   CONTRARY  TO   PUBLIC   POLICY.  305 


SAME— AGREEMENTS  IN  DEROGATION  OF  PARENTAL 

RELATION. 

165.  A  contract  wkereby  a  father  deprives  himself  of  the  custody  of 

his  child  is  contrary  to  public  policy. 

Parental  Relation. 

A  contract  by  a  father  for  relinquishment  of  the  right  to  the  cus- 
tody of  his  child  is  void  as  against  public  policy.^- ^  The  trust  is  per- 
sonal to  the  father,  and  he  has  no  right  to  dispose  of  the  child  to  an- 
other. Such  contracts,  however,  when  carried  out,  may  have  the  in- 
direct effect  of  preventing  the  father  from  asserting  his  rights,  if  the 
interests  of  the  child  so  require.^^*         r/   '  ^  ►—• /^    iJLP  ^/ 

SAME— AGREEMENTS  IN  RESTRAINT  OF  TRABE.  '^ 

166.  Any  agreement  which  unreasonably  restrains  a  person  from  ex- 
ercising his  trade  or  business  is  contrary  to  public  policy. 

167.  A  restraint  is  not  unreasonable  if  it  is  founded  on  a  valuable 
consideration,  and  is  reasonably  necessary  to  protect  the  inter- 
est of  the  party  in  urhose  favor  it  is  imposed,  and  does  not  un- 
duly prejudice  the  interests  of  the  public. 

168.  It  was  formerly  thought,  and  is  still  held  in  some  jurisdictions, 
that  though  the  restraint  might  be  unlimited  as  to  time,  it 
could  not  be  unlimited  as  to  space;  but  modern  decisions  hold 
that  such  a  restraint  is  not  invalid,  if  it  is  reasonable. 

169.  'Within  this  class  are  combinations  and  agreements  tending  to 
prevent  competition,  enhance  prices,  and  create  monopolies, 
but  they  had  best  be  treated  separately. 

A  contract  in  unreasonable  restraint  of  trade  is  contrary  to  public 
policy  and  void.  "The  unreasonableness  of  contracts  in  restraint  of 
trade  and  business  is  very  apparent  from  several  obvious  considera- 
tions: (i)  Such  contracts  injure  the  parties  making  them,  because 
they  diminish  their  means  of  procuring  livelihoods  and  a  competency 
for  their  families.  *  *  *  (2)  They  tend  to  deprive  the  public  of 
the  services  of  men  in  the  employments  and  capacities  in  which  they 
may  be  most  useful  to  the  community  as  well  as  to  themselves.  (3) 
They  discourage  industry  and  enterprise,  and  diminish  the  products  of 

221  state  V.  Baldwin.  5  N.  J.  Eq.  454,  45  Am.  Dec.  397;  People  v.  Merceln, 
3  Hill  (N.  Y.)  410,  38  Am.  Dec.  G44;  Brooke  v.  Ix>gan,  112  Ind.  183,  13  N.  E. 
669,  2  Am.  St.  Rep.  177;  Washaw  v.  Gimble,  50  Ark.  351,  7  S.  W.  389;  Weir 
V.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672;  Hibbette  v.  Baines,  78 
Miss.  695,  29  South.  SO,  51  L,  R.  A.  839.  Cf.  Enders  v.  Enders,  164  Pa.  266, 
30  Atl.  129,  27  L.  R.  A.  56,  44  Am.  St.  Rep.  598. 

222  See  Tiffany,  Pers.  &  Dom.  Rel.  253-255. 
Clark  Cont.  (2d  Ed.)— 20 


306  LEGALITY   OF  OBJECT.  (Ch.  8 

ingenuity  and  skill.  (4)  They  prevent  competition  and  enhance  prices. 
(5)  They  expose  the  public  to  all  the  evils  of  monopoly.^^^  Public 
policy  requires,  how'ever,  that  the  freedom  of  persons  to  enter  into  con- 
tracts shall  not  be  lightly  interfered  with.  Some  restraint  of  trade, 
therefore,  must  be  permitted,  but  w6  shall  see  that  it  must  not  be  unrea- 
sonable. 

At  one  time  in  England  it  was  considered  that  a  contract  was  con- 
trary to  public  policy  if  it  placed  any  restraint  at  all  on  a  man's  right 
to  exercise  his  trade  or  calling.  Gradually,  however,  exceptions  were 
recognized,  until  at  last  the  court,  in  a  leading  case,  established  the 
rule  that  a  contract  in  restraint  of  trade,  upon  consideration  which 
shows  it  was  reasonable  for  the  parties  to  enter  into  it,  is  good ;  "that 
wherever  a  sufficient  consideration  appears  to  make  it  a  proper  and 
useful  contract,^-^  and  such  as  cannot  be  set  aside  without  injury  to  a 
fair  contractor,  it  ought  to  be  maintained,  but  with  this  constant  di- 
versity, viz.  where  the  restraint  is  general,  not  to  exercise  a  trade 
throughout  the  kingdom,  and  where  it  is  limited  to  a  particular  place, 
for  the  former  of  these  must  be  void,  being  of  no  benefit  to  either 
party,  and  only  oppressive."  ^^^  Although  in  that  case  the  restraint 
was  limited  both  as  to  time  and  space,  so  that  it  did  not  call  for  a  de- 
cision on  a  contract  in  general  restraint  of  trade,  it  has  since  been  as- 
sumed in  numerous  cases,  and  in  some  directly  decided,  that  a  con- 
tract which  imposes  a  restraint  which  is  unlimited  as  to  space  is  void 
on  its  face.-^°  In  England  the  law  is  now  settled  that  a  restraint,  al- 
though unlimited  as  to  space,  is  valid,  if,  under  the  particular  circum.- 
stances,  it  is  reasonable.^^^  Some  diversity  of  opinion  exists,  however, 
between  the  courts  of  this  country.^ ^* 

In  determining  whether  a  particular  restraint  is  reasonable,  the  court 
vill  consider  the  nature  and  extent  of  the  trade  or  business,  the  situa- 
ion  of  the  parties,  and  all  the  other  circumstances.  If,  on  such  a  con- 
j.ideration,  the  restraint  seems  unreasonable,  the  contract  will  be  de- 
A:lared  void,  however  partial  the  restraint  may  be.  As  said  in  a  lead- 
ing case,  the  court  will  consider  "whether  the  restraint  is  such  only 
as  to  afford  a  fair  protection  to  the  interests  of  the  party  in  favor  of 
whom  it  is  given,  and  not  so  large  as  to  interfere  with  the  interests 
of  the  public.  Whatever  restraint  is  larger  than  the  necessary  protec- 
tion of  the  party  can  be  of  no  benefit  to  either.  It  can  only  be  oppres- 
sive, and,  if  oppressive,  it  is,  in  the  eye  of  the  law,  unreasonable. 

223  Alger  V.  Thacher,  19  Pick.  (Mass.)  51,  31  Am.  Dec.  119. 

224  A  contract  in  restraint  of  trade  must  be  based  on  a  sufficient  consid- 
eration. Ante,  p.  114.  See  Chapin  v.  Brown,  83  Iowa,  1.5G,  48  N.  W.  1074,  12 
L.  R.  A.  428.  32  Am.  St.  Rep.  287;  Cleaver  v.  Lenhai-t,  182  Pa.  285,  37  Atl. 
811.     And  see  Urmston  v.  Wliitelegg,  (kJ  Law.  T.  455. 

225MITCHEL  V.  REYNOLDS.  1    P.   Wms.   181. 

228  r>ost,  p.  308.  22  7  Post,  p.  309.  228  Post,  p.  809. 


§§  166-169)      AGREEMENTS    CONTRARY    TO   PUBLIC    POLICY.  307 

Whatever  is   injurious  to  the  interests  of  tlie  public  is  void  on  the 
ground  of  pubhc  policy."  --" 

To  illustrate  this  rule,  a  retail  merchant,  a  mechanic,  or  a  profes- 
sional man,  whose  trade  or  business  does  not  extend  beyond  the  limits 
of  the  city  in  w^hich  he  does  business,  or  the  immediate  neighborhood, 
may,  on  selling  his  business,  bind  himself  not  to  engage  in  the  same 
business  in  that  city  or  neighborhood.  This  is  clearly  necessary  to 
protect  the  interests  of  the  other  party.^^'^  On  the  other  hand,  it  could 
only  oppress  him,  and  could  not  benefit  the  other  party,  to  uphold  a 
promise  not  to  engage  in  the  same  business  anywhere  in  the  state,  and 
such  a  promise  would  be  unreasonable  and  void.^^^  We  can  even 
imagine  cases  in  which  an  agreement  by  a  person,  on  selling  his  busi- 
ness, not  to  engage  in  the  same  business  in  the  same  city,  would  be 
unreasonable;  as,  for  instance,  in  case  of  a  small  bakery  in  a  large 
city,  the  trade  of  which  is  only  in  the  vicinity  of  the  shop.     Again,  a 

220  Horner  v.  Graves,  7  Bing.  735.  See,  also,  ROUSILLON  v.  ROUSILr- 
LON,  14  Cli.  Div.  358;  HBRRESHOFF  v.  BOUTINEAU,  17  R.  I.  3,  19  Atl. 
712,  8  L.  R.  A.  4G9,  33  Am.  St  Rep.  850;  Keeler  v.  Taylor,  53  Pa.  467,  91 
Am.  Dec.  221;  Arnold  v.  Kreiitzer,  67  Iowa,  214,  25  N.  W.  138;  Ellerman  v. 
Stockyards  Co.,  49  N.  J.  Eq.  217,  23  Atl.  287;  Gill  v.  Ferris,  82  Mo.  156; 
Tecktonius  v.  Scott,  110  Wis.  441,  86  N.  W.  672;  Harrison  v.  Sugar  Refining 
Co.,  116  Fed.  304,  53  C.  C.  A.  484,  58  L.  R.  A.  915;  Fisheries  Co.  v.  Lennen 
(C.  C.)  116  Fed.  217;  Kronschnabel-Smith  Co.  v.  Kronschnabel,  87  Minn.  230, 
91  N.  W.  892;  Ti-entman  v.  Walirenburg,  30  Ind.  App.  304,  65  N.  E.  1057. 
Injury  to  tlie  interests  of  the  public  is  always  to  be  taken  into  considera- 
tion. See  Western  Wooden- Ware  Ass'n  v.  Starkey,  84  Mich.  76,  47  N.  W.  604, 
11  L.  R.  A.  503,  22  Am.  St.  Rep.  686. 

230  Washburn  v.  Dosch,  68  Wis.  436,  32  N.  W.  551,  60  Am.  Rep.  873; 
D wight  V.  Hamilton,  113  Mass.  175;  Finger  v.  Hahn,  42  N.  J.  Eq.  606,  8 
Atl.  6.54;  Linn  v.  Sigsbee,  67  111.  75;  Hubbard  v.  Miller,  27  Mich.  15,  15  Am. 
Uep.  153;  Handforth  v.  Jackson,  150  Mass.  149,  22  N.  E.  034;  Smith  v. 
Leady,  47  111.  App.  441;  McClurg's  Appeal,  58  Pa.  51;  Boutelle  v.  Smith, 
116  Mass.  111.  An  agreement  not  to  sell  a  particular  line  of  goods  in  a 
certain  town  may  be  valid,  Clark  v.  Crosliy,  37  Vt  188;  or  not  to  sell  to 
anybody  in  certain  town  or  state  except  promisee,  Newell  v.  Meyendorff,  9 
Mont.  254,  23  Pac.  333,  8  L.  R.  A.  440,  18  Am.  St  Rep.  738;  Roller  v.  Ott 
14  Kan.  609;  Keith  v.  Optical  Co.,  48  Ark.  138,  2  S.  W.  777.  The  following 
agreements  have  been  held  a  reasonable  restraint:  Covenant  in  deed  not  to 
sell  intoxicating  liquors  on  premises  in  less  quantities  than  five  gallons,  Sutton 
v.  Head,  SO  Ky.  156.  5  S.  W.  410,  9  Am.  St.  Rep.  274;  or  not  to  cariT  on 
trading  or  mercantile  business  thereon,  Morris  v.  Manufacturing  Co.,  83 
z\.la.  565,  3  South.  689.  Agreement  by  vendee  of  land  not  to  sell  sand  from 
it.  Hodge  V.  Sloan,  107  N.  Y.  244,  17  N.  E.  335,  1  Am.  St  Rep.  816.  Not  to 
manufacture  ochre  in  certain  count3^  Smith's  Appeal,  113  Pa.  579,  6  Atl.  251. 
Not  to  use  premises  sold  for  hotel.  Wittenberg  v.  MoUyneaux,  60  Neb.  583, 
83  N.  W.  824.  Covenant  by  lessee  not  to  sell  any  beer  on  premises  except 
that  made  by  a  certain  company.  Feriis  v.  Brewing  Co.,  155  Ind.  539,  58 
N.  E.  701. 

231  See  HERRESHOFF  v.  BOUTINEAU,  17  R.  I.  3,  19  Atl.  712,  8  L.  R.  A, 
469,  33  .4m.  St  Rep.  850. 


308  LEGALITY  OF  OBJECT.  (Cb.  8 

wholesale  merchant  selling  only  in  a  particular  section  of  the  country 
could  not,  on  selling  his  business,  bind  himself  not  to  engage  in  the 
same  business  anywhere  in  the  United  States,  though  the  restriction 
would  be  valid  if  limited  to  the  district  covered  by  his  trade,  even 
though  it  might  extend  over  several  states.^^^  The  business  of  some 
wholesale  houses  extends  over  the  entire  United  States,  and  even  fur- 
ther ;  and  the  courts,  as  we  shall  see,  show  a  tendency  in  some  of  the 
modern  cases  to  allow  a  restriction  coextensive  with  the  business. 
Other  courts,  however,  looking  upon  the  restraint  as  general,  hold  it 
void  on  its  face  for  that  reason  alone,  without  regard  to  what  the  in- 
terests of  the  other  party  may  require. 

A  contract  between  manufacturers  or  dealers,  not  incidental  to  a  sale 
of  the  business,  to  refrain  from  selling  or  competing,  tending,  as  it 
does,  to  destroy  competition,  and  not  being  necessary  for  the  protec- 
tion of  the  promisee,  has  been  held  unreasonable  and  void.^^* 

Restraint  Unlimited  as  to  Space. 

As  we  have  already  stated,  it  was  for  a  long  time  thought,  both  in 
England  and  with  us,  that  a  contract  in  restraint  of  trade  was  void 
on  its  face  if  the  restraint  was  unlimited  as  to  space,  and  there  are 
modern  cases  laying  down  the  same  rule.^^* 

232  See  DIAMOND  MATCH  CO.  v.  ROEBER,  106  N.  Y.  473,  13  N.  E.  419,  60 
Am.  Rep.  464. 

23  3  Fox  Solid  Pressed  Steel  Co.  v.  Scboen  (C.  C.)  77  Fed.  29;  Clark  v. 
Needham,  125  Mich.  84,  83  N.  W.  1027,  51  L.  R.  A.  785,  84  Am.  St  Rep.  559; 
Culp  V.  Love,  127  N.  C.  457,  37  S.  E.  476.  Contra,  Wood  v.  Whitehead  Bros. 
Co.,  165  N.  Y.  545,  59  N.  E.  357.  And  see  Oakes  v.  Water  Co.,  143  N.  Y.  430, 
38  N.  E.  461,  26  L.  R.  A.  544. 

234  Alger  V.  Thacher,  19  Pick.  (Mass.)  51;   BISHOP  v.  PALMER,  146  Mass 
469.  16  N.  E.  299,  4  Am.   St   Rep.  339;    Dean  v.  Emerson,   102  Mass.  480 
Thomas  v.  Miles'  Adm'r,  3  Ohio  St  274;    Long  v.  Towl,  42  Mo.  545,  97  Am 
Dec.  355;    Peltz  v.  Eichele,  62  Mo.  171;    Sutton  v.  Head.  86  Ky.  156,  5  S.  W 
410,  9  Am.  St  Rep.  274;    Smith's  Appeal,  113  Pa.  579,  6  Atl.  231;    Warfield 
V.  Booth,  33  Md.  63;   Goodman  v.  Henderson,  58  Ga.  567;    Lufkin  Rule  Co.  v 
Fringeli.  57  Ohio  St  596,  49  N.  E.  1030,  41  L.  R.  A.  185,  63  Am.  St  Rep.  736 
Harding  v.  Glucose  Co.,  182  111.  551,  55  N.  E.  577,  74  Am.  St  Rep.  189  (Cf, 
Lanzit  v.  Manufacturing  Co.,  184  111.  326,  56  N.  E.  393,  75  Am.  St  Rep.  171) ; 
Union  Strawboard  Co.  v.  Bonfield,  193  111.  420,  61  N.  E.  1038,  86  Am.  St.  Rep. 
346.     See,  also,  GAMEWELL  FIRE  ALARM  TELEGRAPH  CO.  v.  CRANE, 
160  Mass.  50,  35  N.  E.  98,  22  L.  R,  A.  673,  39  Am.  St.  Rep.  458.     It  was  at  one 
time  considered  that  an  agreement  not  to  carry  on  a  business  anywhere 
within  a  state,  like  an  agreement  not  to  carry  it  on  anywhere  within  the 
United  States,  was  unlimited  as  to  space,  and  was  invalid  as  imposing  a  gen- 
eral restraint  Taylor  v.  Blanchard,  13  Allen  (Mass.)  370,  90  Am.  Dec.  203; 
Chappel  V.  Brockway,  21  Wend.  (N.  Y.)  157;    Wright  v.  Ryder.  36  Cal.  342, 
95  Am.  Dec.  186;    More  v.  Bonnet  40  Cal.  251,  6  Am.  Rep.  621;    Nobles  v. 
Bates,  7  Cow.  (N.  Y.)  307;  but  this  doctrine  is  now  generally  repudiated,  and 
such  an  agreement  will  be  enforced,  if,  under  the  circumstances,  the  restraint 
Is  reasonable.     Oregon  Steam  Nav.  Co.  v.  Winsor,  20  Wall.  64,  22  L.  Ed.  315; 


§§  166-169)      AGREEMENTS    CONTRARY   TO   PUBLIC   POLICY.  309 

The  tendency  of  the  cases  is,  however,  to  relax  the  old  rule,  and  to 
allow  a  restraint  unlimited  in  space  if  it  is  reasonable,  and  no  broader 
than  is  necessary  for  the  protection  of  the  covenantee.  Such  is  the 
doctrine  which  is  now  established  in  England. ^^*  Thus,  in  a  recent 
case,^^'  where  a  patentee  and  manufacturer  of  guns  and  ammunition 
covenanted  with  a  company  to  which  his  patents  and  business  had  been 
transferred  not  to  engage,  for  twenty-five  years,  in  the  business  of 
manufacturing  guns  and  ammunition,  it  was  held  that  the  covenant  was 
not  in  restraint  of  trade.  "The  inquiry  as  to  the  validity  of  all  cove- 
nants in  restraint  of  trade,"  said  Lord  Ashborne,  "must  now  ultimately 
turn  upon  whether  they  are  reasonaWe,  and  whether  they  exce£d_wJiat 
is  reasonably  necessary  for  the  covenantee."  In  this  country,  also,  the 
tendency  oT  the  modern  cases  is  to  support  a  restraint,  although  un- 
limited in  space,  provided  it  is  reasonably  necessary  for  the  protection 
of  the  promisee. ^^'^ 

Restraint  Unlimited  a^  to  Time. 

It  has  been  said  without  qualification  that,  if  the  restraint  is  rea- 
sonably limited  as  to  space,  the  fact  that  it  is  unlimited  as  to  time  will 
not  render  the  agreement  void ;  that,  for  instance,  an  agreement  not 
to  carry  on  a  trade,  business,  or  profession  in  a  certain  city  is  valid, 
though  it  may  be  agreed  that  it  shall  never  be  carried  on  there.*'*     It 

Beal  V.  Chase,  31  Mich.  490;  DIAMOND  MATCH  CO.  v.  ROEBER,  35  Hun 
(X.  Y.)  421;  Id.,  106  N.  Y.  473,  13  N.  E.  419,  60  Am.  Rep.  464;  HERRES- 
HOFF  V.  BOUTINEAU,  17  R.  I.  3,  19  Atl.  712,  8  L.  R.  A.  469,  33  Am.  St. 
Rep.  8.50 

235ROUSILLON  V.  ROUSILLON,  14  Ch.  Div.  351;  BADISCHE  AXILIN 
UXD  SODA  FABRIK  v.  SCHOTT  [1892]  3  Ch.  447;  NORDENFELT  v. 
]SIAXIM-NORDENFELT  CO.  [18&4]  App.  Cas.  535;  Underwood  t.  Barker 
11899]  1  Ch.  300. 

230  XORDEXFELT  v.  MAXIM-XORDEXFEI.T  CO.  [1894]  App.  Cas.  535. 

287  DIAMOND  MATCH  CO.  v.  ROEBER,  106  N.  Y.  473,  13  N.  E.  419,  60 
Am.   Rep.   464;    HERRESHOFF   v.   BOUTIXEAU,    17   R.    I.   3,    19   Atl.   712, 

8  L.  R.  A.  469,  33  Am.  St.  Rep.  850;  Xational  Ben.  Co.  v.  Hospital  Co..  45 
Minn.  272,  47  X.  W.  806,  11  L.  R.  A.  437;    Gibbs  v.  Gas  Co.,  130  U.  S.  409, 

9  Sup.  Ct  553,  32  L.  Ed.  979;  Fowle  v.  Park,  131  U.  S.  88,  9  Sup.  Ct  658, 
33  L.  Ed.  67;  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.  484,  28  Atl.  973,  23  L.  R. 
A.  639,  49  Am.  St.  Rep.  784:  Carter  v.  Ailing  (C.  C.)  43  Fed.  208;  Richacds  v. 
Seating  Co..  87  Wis.  503.  58  X.  W.  787;  Consumers'  Oil  Co.  v.  Nunnemaker, 
142  Ind.  500,  41  N.  E.  1048.  51  Am.  St.  Rep.  193;  ANCHOR  ELECTRIC  CO. 
V.  HAWKES,  171  Mass.  101,  50  X.  E.  509,  41  L.  R.  A.  189,  68  Am.  St.  Rep. 
403;  Kramer  v.  Old.  119  X.  C.  1,  25  S.  E.  813,  .34  L.  R.  A.  389,  56  Am.  St 
Rep.  650;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  .1.  Eq.  507,  43  AU.  723, 
4G  U  R.  A.  255.  78  Am.  St.  Rep.  612;  Buck  v.  Coward.  122  Mich.  530,  81  X. 
W.  32S;  Xational  Enameling  &  Stamping  Co.  v.  Haberman  (C.  C.)  120  Fed. 
415.  See  "Conti-acts  in-Resti-aint  of  Trade,"  by  Amasa  M.  Eaton,  Harv.  L. 
R.  128. 

238  Bowser  v.  Bliss,  7  Blackf.  (Ind.)  344,  43  Am.  Dec.  93;    Angier  v.  Web- 


310  LEGALITY   OF   OBJECT.  (Cb.  8 

is  clear,  however,  that  the  same  considerations  apply  as  in  the  case  of 
a  restraint  unlimited  in  space.  A  restraint  unlimited  as  to  time  may 
be  necessary  to  protect  the  party  in  whose  favor  it  is  imposed,  and 
in  such  a  case  it  will  be  upheld;  but,  if  unnecessary,  the  agreement 
cannot  be  sustained. ^^^ 

In  a  leading  English  case  the  defendant  had  entered  the  service 
of  the  plaintiff,  who  was  a  druggist  carrying  on  his  business  in  the 
town  of  Taunton,  as  the  plaintiff's  assistant,  under  a  contract  where- 
by he  agreed  that  he  would  not,  at  any  time  after  leaving  the  plaintiff's 
service,  engage  in  the  business  of  a  druggist  and  chemist  in  that  town. 
The  agreement  was  held  void  in  the  lower  court  on  the  ground  that 
the  restraint  was  larger  than  the  necessary  protection  of  the  party  in 
favor  of  whom  it  was  given  required.^'"  This  judgment  was  reversed 
on  writ  of  error  on  the  ground  that  a  restriction  so  extensive  in  point 
of  time  was  necessary  for  the  protection  of  the  promisee  in  the  enjoy- 
ment of  the  good  will  of  his  trade.  "The  good  will  of  a  trade,"  it 
was  said  by  Tindal,  C.  J.,  "is  the  subject  of  value  and  price.  It  may 
be  sold,  bequeathed,  or  become  assets  in  the  hand  of  the  personal  rep- 
resentative of  a  trader ;  and,  if  the  restriction  as  to  time  is  to  be  held 
to  be  illegal  if  extended  beyond  the  period  of  the  party  by  himself 
carrying  on  the  trade,  the  value  of  such  good  will,  considered  in  those 
various  points  of  view,  is  altogether  destroyed.  If,  therefore,  it  is  not 
unreasonable  (as  undoubtedly  it  is  not)  to  prevent  a  servant  from  en- 
tering into  the  same  trade  in  the  same  town  in  which  his  master  lives, 
so  long  as  the  master  carries  on  the  trade  there,  we  cannot  think  it  un- 
reasonable that  the  restraint  should  be  carried  further,  and  should  be 
allowed  to  continue  if  the  master  sells  the  trade,  or  bequeaths  it,  or  it 
becomes  the  property  of  his  personal  representative."  ^*^ 

Some  courts  draw  a  distinction  between  contracts  binding  the  prom- 
isor to  desist  from  the  practice  of  a  learned  profession,  and  contracts 
not  to  engage  in  a  business  which,  with  its  good  will,  the  promisor 

ber,  14  Allen  (Mass.)  211,  92  Am.  Dec.  748;   Cook  v.  Johnson,  47  Conn.  178,  36 
Am.  Rep.  64. 

239  Hitchcock  V.  Coker,  6  Adol.  &  E.  453;  Smith  v.  Brown,  164  Mass.  584, 
42  N.  E.  101;  Mandeville  v.  Ilarman,  42  N.  J.  Eq.  185,  7  Atl.  37;  Carrl  v. 
Snyder  (N.  J.  Ch.)  26  Atl.  977;  French  v.  Parker,  16  R.  I.  219,  14  Atl.  870,  27 
Am.  St.  Rep.  733;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq.  507,  43 
Atl.  723,  40  L.  R.  A.  2.55,  78  Am.  St.  Rep.  612;  Up  River  Ice  Co.  v.  Denier, 
114  Mich.  296,  72  N.  W.  157,  68  Am.  St.  Rep.  480;  Eisel  v.  Hayes,  141  Ind.  41, 
40  N.  E.  119;  O'Neal  v.  Hines,  145  Ind.  32,  43  N.  E.  946;  Swanson  v.  Kirby, 
98  Ga.  586,  26  S.  E.  71;  Rakestraw  v.  I-anier,  104  Ga.  188,  30  S.  E.  735,  69 
Am.  St.  Rep.  154. 

240  Hitchcock  V.  Coker,  6  Adol.  &  E.  438. 

241  Hitchcock  V.  Coker,  6  Adol.  &  E.  453.  And  see  Pemberton  v.  Vaughan, 
10  Q.  B.  87;  Elves  v.  Crafts,  10  C.  B.  241;  Atkyns  v.  Kinnier,  4  Exch. 
(Welsh.,  H.  &  G.)  782;    Bowser  v.  Bliss,  7  Blackf.  (Ind.)  344,  43  Am.  Dec.  93. 


§§  166-169)      AQKEEMENTS   CONTRARY    TO    TUBLIC    POLICY.  311 

has  sold,  holding  that  in  the  former  case  a  restraint  unlimited  in  time  is 
unreasonable,-*^  Thus,  in  a  recent  New  Jersey  case,  in  which  it  was 
held  that  since  a  contract  imposing  a  restraint  greater  than  is  neces- 
sary to  protect  the  party  for  whose  benefit  it  is  imposed  is  void,  a 
covenant  that  a  physician  shall  not  "at  any  time  thereafter"  engage  in 
practice  in  a  certain  city  is  void,  because  it  would  prevent  him  from 
practicing  after  the  death  of  the  other  party. ^*^  The  court  considered 
the  English  case  above  mentioned,  and  held  that  the  reasoning  did  not 
apply.  "The  practice  of  a  physician,"  it  was  said,  "is  a  thing  so  purely 
personal,  depending  so  absolutely  on  the  confidence  reposed  in  his 
personal  skill  and  ability,  that  when  he  ceases  to  exist  it  necessarily 
ceases  also,  and  after  his  death  can  have  neither  an  intrinsic  nor  a  mar- 
ket value."  The  contrary,  however,  has  been  held  in  Rhode  Island. 
The  reason  of  the  English  decisions  mentioned  above,  it  was  said, 
"is  as  valid  in  the  case  of  a  profession  as  of  a  trade ;  for  whether,  tech- 
nically speaking,  there  be  any  good  will  attending  a  profession  or  not, 
the  professional  practice  itself  would  probably  sell  for  more  with  the 
restraining  contract,  if  the  restraint  were  unlimited  in  duration,  than 
it  would  if  the  restraint  were  for  the  life  of  the  promisee  or  covenantee 
only.  If  the  complainant  here  wished  to  retire  from  his  practice  and 
sell  it,  he  could  probably  sell  it  for  more  if  he  would  secure  the  pur- 
chaser from  competition  forever  than  he  could  if  he  could  only  secure 
him  from  such  competition  during  his  own  life.  So,  if  he  wished  to 
take  in  a  partner,  he  could  for  the  same  reason  make  better  terms  with 
him."  2" 

Sale  of  Secret  Process. 

A  person  engaged  in  manufacturing  an  article  by  a  secret  process 
may  sell  the  business  and  secret,  and  make  a  valid  promise  not  to 
divulge  the  secret  to  any  one  else,  nor  to  engage  himself  at  any  time 
in  manufacturing  by  that  process.  Such  a  restraint  is  necessary  to 
protect  the  other  party,  and  does  not  unduly  prejudice  the  public. 
In  speaking  of  such  a  contract,  it  was  said  by  the  New  York  court, 
in  a  late  case,  that  it  "simply  left  matters  substantially  as  they  were 

242  Mandeville  v.  Harman,  42  N.  J.  Eq.  1S5,  7  Atl.  37;  Rakestraw  v. 
Lanier,  104  Ga.  188,  30  S.  E.  735,  69  Am.  St.  Hep.  154. 

243  Mandeville  v.  Harman,  42  N.  J.  Eq.  185,  7  Atl.  37. 

244  French  v.  Parker,  10  R.  I.  219,  14  Atl.  870,  27  Am.  St.  Rep.  733.  To  the 
same  effect,  see  Butler  v.  Burleson,  16  Yt.  176;  Martin  v.  Mm-pliy,  129  Ind. 
404,  28  N.  E.  1118;  Linn  v.  Sigsbee,  67  111.  75;  McClurg's  Appeal,  58  Pa.  51; 
Miller  v.  Elliott,  1  Ind.  484,  50  Am.  Dec.  475;  Cook  v.  Johnson,  47  Conn.  175, 
36  Am.  Rep.  64;  Doty  v.  Martin,  32  Mich.  462;  Timmerman  v.  Dever,  52 
Mich.  34,  17  N.  W.  230,  50  Am.  Rep.  240;  Cole  v.  Edwards,  93  Iowa,  477,  61 
N.  W.  940;  McCui-ry  v.  Gibson,  108  Ala.  451,  18  South.  806,  54  Am.  St  Rep. 
177;  Tillinghast  v.  Boothby,  20  R.  1.  59,  37  Atl.  344.  Agreement  never  to 
pi-actice  law  in  a  particular  town.  Smalley  v.  Greene,  52  Iowa,  241,  3  N. 
W.  78,  35  Am.  Rep.  207;  Bunn  y.  Guy,  4  East,  190. 


312  LEGALITY  OP  OBJECT.  (Ch.  8 

before  the  sale,  except  that  the  seller  of  the  secret  had  agreed  that 
she  would  not  destroy  its  value  after  she  had  received  full  value  for 
it.  The  covenant  was  not  in  general  restraint  of  trade,  but  was  a  rea- 
sonable measure  of  mutual  protection  to  the  parties,  as  it  enabled 
the  one  to  sell  at  tli-e  highest  price,  and  the  other  to  get  what  he  paid  for. 
It  imposed  no  restriction  upon  either  that  was  not  beneficial  to  the 
other  by  enhancing  the  price  to  the  seller,  or  protecting  the  purchaser. 
Recent  cases  make  it  very  clear  that  such  an  agreement  is  not  opposed 
to  public  policy,  even  if  the  restriction  was  unlimited  as  to  both  time  and 
territory."  ^** 


SAME— UNIiAWTUIi  COMBINATIONS— MONOPOLIES,  TRUSTS, 

ETC. 

170.  A  combination  bet^reen  dealers  in  a  necessary  oommodity  to  con- 

trol and  enhance  the  price  by  preventing  competition  in  the 
sale  thereof,  or  by  decreasing  tlie  production,  or  by  withhold- 
ing it  from  the  market,  or  other  illegitimate  means,  is  contrary 
to  public  policy. 

171.  Combinations  to  prevent  competition  have  been  alloxved   under 

particular  circumstances. 

172.  A  combination  between  laborers,  mechanics,  and  other  workmen 

to  control  tke  price  of  their  labor,  by  tbe  weight  of  authority, 
is  la^vful  if  unlaw^ful  or  unreasonable  means  for  accomplish- 
ing the  object  are  not  contemplated,  the  mere  fact  of  combina- 
tion to  control  the  price  of  labor  not  being  per  Be  illegal. 

The  law  does  not  undertake  to  say  to  a  dealer  in  a  commodity,  even 
though  it  may  be  one  of  the  necessaries  of  life,  that  he  shall  not  sell 
it  above  a  certain  price,  nor  to  compel  him  to  sell  it  at  all.  Singly, 
he  may  suspend  sales  and  raise  the  price  to  suit  his  own  interests, 
though  it  may  be  detrimental  to  the  public  interest.  The  law  does, 
however,  condemn  a  combination  between  several  manufacturers  or 
dealers  in  a  necessary  commodity,  the  object  of  which  is  to  control 

246  Tode  V.  Gross,  127  N.  Y.  4S0,  28  N.  E.  469,  13  L.  R.  A.  652,  24  Am.  St. 
Rep.  475  (affirming  51  Hun,  644,  4  N.  Y.  Supp.  402).  And  see  Fowle  v. 
Park,  131  U.  S.  88,  9  Sup.  Ct.  658.  33  L.  Ed.  67;  Wiley  v.  Baumgardner,  97 
Ind.  66,  49  Am.  Kep.  427;  Vickery  v.  Welch,  19  Pick.  (Mass.)  523;  Peabody 
V.  Norfolk,  98  Mass.  452,  96  Am.  Dec.  664;  Jarvis  v.  Peck,  10  Paige  (N.  Y.) 
118.  Condition  of  conti'act  of  employment  that  servant  shall  not  use  or 
divulge  trade  secrets  Is  not  invalid  as  in  restraint  of  trade.  Tlium  Co.  v. 
Tloczynski,  114  Mich.  149,  72  N,  W.  140.  38  L.  R.  A.  200,  68  Am.  St.  Rep. 
469;  Simmons  Medicine  Co.  v.  Simmons  (C.  C.)  81  Fed.  163.  Contract  of  em- 
ployment between  company  using  patented  machines  and  mechanic,  which 
requires  that  improvements  in  machines  made  by  mechanic  shall  belong  to 
company,  is  not  unreasonable.  Hulse  v.  Machine  Co.,  65  Fed.  S64,  13  C.  C. 
A.  180. 


§§  170-172)      AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY.  313 

and  enhance  the  price  by  preventing  competition  in  the  sale  thereof,  or 
by  decreasing-  the  production,  or  by  witliholding  it  from  the  market,  or 
other  illegitimate  means.  "When  competition  is  left  free,"  it  was  said 
by  the  Pennsylvania  court,  in  holding  a  combination  betv^een  coal  com- 
panies void,  "individual  error  or  folly  will  generally  find  a  correction 
in  the  conduct  of  others.  But  here  the  companies  have  combined  to- 
gether to  govern  the  supply  and  the  price  of  coal.  *  *  *  This 
combination  has  a  power  in  its  confederated  forms  which  no  individual 
can  confer.  The  public  interest  must  succumb  to  it,  for  it  has  left 
no  competition  free  to  correct  its  baleful'  influence.  When  the  supply 
of  coal  is  suspended,  the  demand  for  it  becomes  importunate,  and 
prices  must  rise;  or,  if  the  supply  goes  forward,  the  price  fixed  by  the 
confederates  must  accompany  it.  *  *  *  The  influence  of  a  lack  of 
supply,  or  a  rise  in  the  price,  of  an  article  of  such  prime  necessity,  can- 
not be  measured.  *  *  *  Such  a  combination  is  more  than  a  con- 
tract; it  is  an  offense."^*®  Such  agreements  as  these  tend  to  create 
monopolies  and  stifle  competition.  They  are  not  only  contrary  to 
statutes   which  have  been   enacted   in   most   jurisdictions,^*'    but   are 

246  Mon-is  Run  Coal  Ck).  v.  Coal  Co.,  68  Pa.  173.  See,  also,  Craft  v.  Mc- 
Conougby,  79  III.  346,  22  Anx  Rep.  171 ;  Central  Ohio  Salt  Co.  y.  Guthrie,  35 
Ohio  St.  666;  Arnot  v.  Coal  Co.,  68  N.  Y.  558,  23  Am.  Rep.  390;  Richardson  v. 
Buhl,  77  Mich.  632.  43  N.  W,  1102,  6  L.  R.  A.  457;  People  v.  Refining  Co., 
121  N.  Y.  582,  24  N.  E.  834,  9  L.  R.  A..  33,  IS  Am.  St.  Rep.  843;  Urmston  v. 
Whitelegg,  63  Law  T.  455;  De  Witt  Wire-Cloth  Co.  v.  Wii'e-Cloth  Co.,  16  Daly, 
529,  14  N.  Y.  Supp.  277;  Judd  v.  Harrington,  139  N.  Y.  105,  34  N.  E.  790; 
Strait  V.  Harrow  Co.  (Sup.)  18  N.  Y.  Supp.  224;  Nester  v.  Brewing  Co.,  161 
Pa.  473,  29  Atl.  102;  State  v.  Oil  Co.,  49  Ohio  St.  137,  30  N.  E.  279,  15  D.  R. 
A.  145,  34  .Am.  St.  Rep.  &41;  SANTA  CLARA  VALLEY  MILL  &  LUMBER 
CO.  V.  HAYES,  76  Cal.  387,  18  Pac.  391,  9  Am.  St  Rep.  211 ;  Leonard  v.  Poole, 
114  N.  Y.  371,  21  N.  E.  707,  4  L.  R.  A.  728,  11  Am.  St.  Rep.  667;  People  v. 
Milk  Exchange.  145  N.  Y.  267,  39  N.  E.  1062,  27  L.  R.  A.  437,  45  Am.  St.  Rep. 
609 ;  Milwaukee  INIasons'  &  Builders'  Ass'n  v.  Niezerowski,  95  Wis.  129,  70  N. 
W.  166,  37  L.  R.  A.  127,  60  Am.  St.  Rep.  97;  Trenton  Potteries  Co.  v.  OUphant, 
58  N.  J.  Eq.  507,  43  Atl.  723,  46  L.  R.  A.  255,  78  Am.  St  Rep.  612. 

247  By  Act  Cong.  July  2,  1800,  c.  047,  26  Stat.  209  [U.  S.  Comp.  St  1901,  p. 
3200],  every  contract  or  combination  in  the  form  of  a  trust  or  other\\-ise, 
or  conspiracy  in  restraint  of  trade  or  commerce  among  the  several  states 
or  with  foreign  nations,  is  declared  illegal;  and  every  person  who  monopolizes, 
or  attempts  or  combines  or  conspires  with  another  to  monopolize,  any  part 
of  such  trade  or  commerce  is  made  guilty  of  a  misdemeanor.  Under  this  act 
a  combination  imposing  restraint  is  unlawful,  whether  reasonable  or  unrea- 
sonable, and  whether  or  not  it  actually  raises  prices.  United  States  v.  As- 
sociation, 166  U.  S.  290,  17  Sup.  Ct  540.  41  L.  Ed.  1007;  United  States  v.  As- 
sociation, 171  U.  S.  505,  19  Sup.  Ct.  25,  43  L.  Ed.  259.  A  contract  between 
manufacturers  of  iron  pipe  in  different  states,  Avhereby  free  competition  was 
restrained,  and  prices  determined  by  a  committee,  held  unlawful.  Addyston 
I'ipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211,  20  Sup.  Ct.  96,  44  L.  Ed. 
136.  See,  also,  United  States  v.  E.  C.  Kight  Co.,  156  U.  S.  1,  15  Slip.  Ct.  249, 
39  L.  Ed.  325;    Hopkins  v.  United  States,  171  U.  S.  578,  19  Sup.  Ct  40,  43  L. 


314 


LEGALITY   OF  OBJECT.  (Ch.  8 


contrary  to  public  policy,  and  void  independently  of  any  statutory  pro- 
hibition. 

Some  combinations  between  dealers  are  legitimate,  and  have  been 
sustained,  though  the  object  was,  to  a  certain  extent,  to  prevent  com- 
petition and  enhance  prices.^^s  The  line  between  combinations  that 
are  lawful  and  those  that  are  unlawful  is  not  clear,  and  the  cases  are 
not  uniform.  It  has  been  held  that  an  agreement  between  partners  not 
to  sell  below  a  certain  price  is  not  unlawful  where  there  is  no  intention 
to  create  a  monopoly  and  controfprices-^*" 

The   rule  that   combinations   to    prevent   competition    and   enhance 
prices  are  illegal  has  been  held  not  to  apply  to  a  combination  between 
manufacturers  of  an  article  which  is  not  a  necessity,  where  the  agree- 
ment puts  no  restraint  on  the  production  and  sale  of  the  article.     In  a 
Massachusetts  case  several  rival  manufacturers  and  sellers  of  a  certain 
fixture,  under  patents  owned  by  them,  who  were  the  principal  dealers 
in  the  article,  and  substantially  supplied  the  market  with  it,  entered 
into  a  combination  to  prevent  competition  between  them,  and  it  was 
upheld.     "In  effect,"  it  was  said,  "it  is  an  agreement,  between  three 
makers  of  a  commodity,  that  for  three  years  they  will  sell  it  at  a  uniform 
price  fixed  at  the  outset,  and  to  be  changed  only  by  consent  of  a  ma- 
jority of  them.     The  agreement  does  not  refer  to  an  article  of  prime 
necessity,  nor  to  a  staple  of  commerce,  nor  to  merchandise  to  be  bought 
and  sold  in  the  market,  but  to  a  particular  curtain  fixture  of  the  parties' 
own  manufacture.     It  does  not  look  to  affecting  competition  from  out- 
side (the  parties  have  a  monopoly  by  their  patents),  but  only  to  restrict 
competition  in  price  between  themselves.     Even  if  such  an  agreement 
tends  to  raise  the  price  of  the  commodity,  it  is  one  which  the  parties 
have  a  right  to  make.     To  hold  otherwise  would  be  to  impair  the  right 
01  persons  to  make  contracts  and  to  put  a  price  on  the  products  of  their 
own  mdustry.     But  we  cannot  assume  that  the  purpose  and  effect  of 
the  combination  are  to  unduly  raise  the  price  of  the  commodity.     A 
natural  purpose  and  a  natural  effect  are  to  maintain  a  fair  and  uniform 
price,  and  to  prevent  the  injurious  effects,  both  to  producers  and  cus- 
tomers, of  fluctuating  prices  caused  by  undue  competition.     When  it 
appears  that  the  combination  is  used  to  the  public  detriment,  a  different 
question  will  be  presented  from  that  now  before  us.     The  contract  is 
apparently  beneficial  to  the  parties  to  the  combination,  and  not  neces- 
sarily injurious  to  the  public,  and  we  know  of  no  authority  or  reason 

Ed.  200:  Anderson  v.  United  States,  171  U.  S.  G04,  19  Sup.  Ct.  50,  43  L.  Ed. 
800:  United  States  v.  Northern  Securities  Co.  (C.  C)  120  Fed.  721.  Tliere  are 
statiitos  declaring  contracts  and  combinations  in  restraint  of  trade  unlawful 
in  many  of  the  states.     The  subject  is  beyond  the  scope  of  this  booli. 

■■H&  See  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223,  55  N.  W.  1119,  21  L.  R.  A. 
337,  40  Am.  St.  Rep.  319. 

24»  Marsh  v.  Uussell,  GO  N.  Y.  2SiJ. 


§§  170-172)       AGREEMENTS    CONTRARY    TO    PUBLIC    POLICY.  315 

•for  holding-  it  to  be  invalid,  as  in  restraint  of  trade  or  against  public 
policy."  "°  On  the  other  hand,  many  cases  hold  that  any  combina- 
tion among  manufacturers  to  create  a  monopoly  to  control  the  price  of 
a  useful  article  or  commodity,  alth.ough  not  a  prime  necessity,  is  ille- 
gal."^ 

^'Corners"  in  the  Market. 

There  are  few  combinations  more  clearly  contrary  to  public  policy 
than  agreements  to  create  what  are  known  as  "corners"  in  the  market, 
as  where  several  persons  enter  into  a  combination  to  buy  up  more  of  a 
commodity  than  there  is  in  the  market,  so  as  to  force  a  fictitious  and 
unnatural  rise  in  values,  with  a  view  of  taking  advantage  of  dealers 
and  purchasers  whose  necessities  compel  them  to  buy.^'^  A  combina- 
tion to  create  a  corner  in  one  of  the  necessaries  of  life  is  not  only  illegal, 
but  is  criminal.  A  combination  to  acquire  a  controlling  interest  in  the 
stock  of  a  corporation  for  the  purpose  of  creating  a  corner  in  the  stock 
market,  though  probably  not  criminal,  is  at  least  illegal.^^^ 

Monopolies  under  Patents. 

The  rule  against  contracts  in  restraint  of  trade  and  monopolies  does 
not  apply  to  contracts  in  reference  to  the  production  and  sale  of  a  pat- 
ented article.  It  is  the  purpose  oi-  a.,^atent_to  give  the  inventor  a  mo- 
nopoly. It  is  a  morioppix  authorized  by  the  government  In  uphold- 
ing an  agreement  by  a  patentee  to  allow  an  association  and  its  members 

250  CENTRAL  SHADE  ROLLER  CO.  v.  CUSHMAN,  143  Mass.  353,  9  N.  E. 
(j29.  And  see  Dolpli  v.  Machinery  Co.  (C.  C.)  2S  Fed.  553;  Skraiuka  v. 
SchaiTinghausen,  8  Mo.  App.  522;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J. 
Eq.  507,  43  Atl.  723,  46  L.  R.  A.  255.  78  Am.  St.  Rep.  (J12.  A  contract  by 
which  three  of  four  companies  engaged  in  the  manufacture  of  oleomargarine 
consolidate  as  a  corporation,  for  the  purpose  of  stopping  the  shai-p  competition 
between  them,  and  agree  tliat  none  sliall  separately  engage  in  the  business  for 
five  years,  held  not  invalid  as  creating  a  monopoly.  Oakdale  Mfg.  Co.  v. 
Garst,  18  R.  I.  484,  28  Atl.  973,  23  L.  R.  A.  639,  49  Am.  St.  Rep.  7S4. 
There  can  be  no  monopoly  in  anything  but  property,  and  news  is  not  a  sub- 
ject of  property  until  published  and  copyrighted,  and  hence  a  corporation 
engaged  in  gathering  and  ti'ansmitting  news  for  publication  cannot  be  com- 
pelled to  furnish  to  a  newspaper  the  same  service  extended  to  others.  State 
V.  Associated  Press,  159  Mo.  410,  60  S.  W.  91,  51  L.  R.  A.  151,  81  Am.  St.  Rep. 
368.  Contra,  Tnter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438,  56  N.  E. 
822,  48  L.  R.  A.  568.  75  Am.  St.  Rep.  184. 

251  EMERY  T.  CANDLE  CO.,  47  Ohio  St.  320,  24  N.  E.  660,  21  Am.  St. 
Rep.  819  (candles);  Cummings  v.  Stone  Co.,  164  N.  Y.  401,  58  N.  E.  525,  52 
L.  R.  A.  262,  79  Am.  St.  Rep.  655  (Hudson  river  bluestono);  Cohen  v.  En- 
velope Co.,  106  N.  Y.  292,  59  N.  E.  906  (envelopes);  Tuscaloosa  Ice  Mfg.  Co. 
V.  Williams,  127  Ala.  110,  28  South.  609,  50  L.  R.  A.  175,  85  Am.  St  Rep.  125 
(ice). 

252  Wright  V.  Crabbs,  78  Ind.  487;  Raymond  v.  Leavitt,  40  Mich.  447,  9 
N.  W.  525,  41  Am.  Rep.  170;    Samuels  v.  Oliver,  130  111.  73,  22  N.  E.  499. 

2  53  Sampson  v.  Shaw,  101  Mass.  145,  3  Am.  Rep.  327. 


316  LEGALITY  OF  OBJECT.  (Ch.  8 

the  exclusive  use  and  sale  of  inventions  patented  by  him,  it  was  said : 
"The  owner  does  not  possess  his  patent  upon  the  condition  that  he  shall 
make  or  vend  the  article  patented,  or  allow  others  to  do  so  for  a  fair 
and  reasonable  compensation.  *  *  *  Considerations  which  might 
obtain  if  the  agreement  were  in  regard  to  other  articles  cannot  be  of 
any  weight  in  the  decision  of  the  questions  arising  upon  an  agreement 
as  to  patented  articles."  ^^*  Patents,  however,  confer  no  right  upon  the 
owners  of  several  distinct  patents  to  combine  for  the  purpose  of  re- 
straining competition  and  trade,  and  such  a  combination  is  unlawful. ^^^ 

Combinations  between  Laborers,  Mechanics,  and  Other  Workmen. 

If  dealers  cannot  combine  to  stifle  competition  and  control  the  price 
of  a  commodity,  it  may  seem  reasonable  to  suppose  that  workmen  can- 
not combine  to  control  the  price  of  their  labor.  Authority  for  declaring 
that  the  same  principle  applies  is  not  wanting.  In  an  Illinois  case,  a 
large  number  of  the  law  stenographers  of  Chicago  formed  an  associa- 
tion, and  fixed  a  schedule  of  prices  which  should  be  binding  on  them. 
The  court  held  that  it  was  contrary  to  public  policy  and  illegal,  citing,  in 
support  of  the  judgment,  cases  in  which  dealers  in  commodities  and 
proprietors  of  boats  had  combined  for  a  similar  purpose.  "All  of  the 
members  of  the  association,"  it  was  said,  "are  engaged  in  the  same  busi- 
ness within  the  same  territory,  and  the  object  of  the  association  is  pure- 
ly and  simply  to  silence  and  stifle  all  competition  as  between  its  mem- 
bers. No  equitable  reason  for  such  restraint  exists,  the  only  reason  put 
forward  being  that,  under  the  influence  of  competition  as  it  existed  prior 
to  the  organization  of  the  association,  prices  for  stenographic  work  had 
been  reduced  too  far,  and  the  association  was  organized  for  the  purpose 
of  putting  an  end  to  all  competition,  at  least  as  between  those  who  could 
be  induced  to  become  members.  True,  the  restraint  is  not  so  far- 
reaching  as  it  would  have  been  if  all  the  stenographers  in  the  city  had 
joined  the  association,  but,  so  far  as  it  goes,  it  is  precisely  of  the  same 
character,  produces  the  same  results,  and  is  subject  to  the  same  legal 
objection."  ^^e 

254  Good  V.  Daland,  121  N.  Y.  1.  24  N.  E.  15.  And  see  Morse  Twist  Drill. 
&  Macli.  Co.  V.  Morso,  103  Mass.  73,  4  Am.  Rep.  513;  Bowling  v.  Taylor 
(C.  C.)  40  Fed.  404 ;  Gloucester  Isinglass  &  Glue  Co.  v.  Cement  Co.,  154  Mass. 
02,  27  N.  E.  1005,  12  L.  R.  A.  5G3.  26  Am.  St.  Rep.  214;  Printing  &  Numerical 
Reg.  Co.  V.  Sampson,  L.  R.  19  Eq.  462;  GARST  v.  HARRIS,  177  Mass.  72, 
58  N.  E.  174;   ante,  p.  314. 

255  A  combination  among  manufacturers  of  harrows,  by  which  each  assigns 
to  a  corporation  patents  under  which  he  is  operating,  and  takes  back  an  ex- 
cluKive  license  to  make  and  sell  the  same  stjie  of  harrow  previously  made 
by  him,  and  no  other,  all  to  sell  at  uniform  prices,  held  to  be  unlawful.  Na- 
tional Harrow  Co.  v.  Hench  (C.  C.)  76  Fed.  667;  Id.,  83  Fed.  36,  27  C.  C.  A. 
349,  39  1j.  R.  A.  299.  See,  also,  National  Harrow  Co.  v.  Quick  (C.  C.)  67  Fed. 
130;   Strait  v.  IlaiTow  Co.  (Snp.)  18  N.  Y.  Supp.  224. 

250  MORE  V.  BENNETT,  140  111.  69,  29  N.  E.  «««,  15  L.  R.  A.  361,  33  Am. 
St.  Rep.  21G. 


§§  170-172)      AGREEMENTS  CONTRARY   TO   PUBLIC   POLICY.  317 

By  most  courts,  however,  it  is  held  that  combinations  between  labor- 
ers, mechanics,  or  other  workmen  are  valid,  even  though  the  object  be 
to  prevent  competition  and  maintain  prices,  provided  the  provisions  for 
that  purpose  are  reasonable.-"''  Greenhood  ^'^^  lays  down  the  rule  (no 
doubt  estabhshed  by  the  weight  of  authority)  that  "combinations  of  ar- 
tisans for  their  common  benefit,  as  for  the  development  of  skill  in  their 
trade,  or  to  prevent  overcrowding  therein, ^°®  or  to  encourage  those  be- 
longing to  their  trade  to  enter  their  fold,^"**  or  for  the  purpose  of  raising 
the  prices  of  labor,^^^  are  valid,  provided  no  force  or  other  unlawful 
means  be  employed  to  carry  out  their  ends,^^^  or  their  object  be  not  to 
impoverish  third  persons,^*^  or  to  extort  money  from  employers,^^*  or 
to  encourage  strikes  or  breaches  of  contract,^®'*  or  to  restrict  the  free- 
dom of  members  for  the  purpose  of  compelling  employers  to  conform 
to  their  rules."  =^"^« 


25T  COLLINS  V.  LOCKE,  4  App.  Cas.  674. 

258  Greenli.  Pub.  Pol.  rule  o4U. 

250  Snow  V.  Wheeler,  118  Mass.  179. 

2  60  Coin.  V.  Hunt,  4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  ^46.  In  this  case  a  rule 
of  an  association  forbade  its  members  to  work  tor  any  one  who  should  em- 
ploy nonunion  members,  and  yet  the  combination  was  held  not  illegal.  This,  ' 
however,  was  a  criminal  prosecution,  and  this  fact  may  be  important. 
Many  acts  and  objects  render  a  conti-act  iUegal  as  being  contrary  to  public 
policy  which  would  not  render  the  parties  liable  to  a  criminal  prosecution. 
See  Greenh.  Pub.  Pol.  G4S,  note  2. 

261  COLLINS  V.  LOCKE,  4  App.  Cas.  G74;  Master  Stevedore's  Ass'n  v. 
Walsli,  2  Daly  (N.  Y.)  1;  Herriman  v.  Menzies,  115  Cal.  16,  46  Pac.  780,  35 
L.  K.  A.  318,  56  Am.  St.  Rep.  81.  But  see  People  v.  Fisher,  14  Wend.  (N.  Y.) 
9,  28  Am.  Dec.  50L 

262  Reg.  V.  Rowlands,  17  Adol.  &  E.  671;  CAREW  v.  RUTHERFORD,  106 
Mass.  1.  8  Am.  Rep.  287;  State  v.  Stewart,  59  Vt.  273,  9  Atl.  559,  59  Am.  Rep. 
710;  State  v.  Clidden,  55  Conn.  46,  8  Atl.  890,  3  Am.  St.  Rep.  23;  Old 
Dominion  S.  S.  Co.  v.  McKerma  (C.  C.)  30  Fed.  48. 

2  63  People  V.  Fisher,  14  Wend.  (N.  Y.)  9;  Rigby  v.  Connol,  14  Ch.  Div.  482; 
Hornby  v.  Close,  L.  R.  2  Q.  B.  153. 

264  CAREW  T.  RUTHERFORD,  106  Mass.  1,  8  Am.  Rep.  287. 

265  Hornby  v.  Close,  L.  R.  2  Q.  B.  153;  Farrer  v.  Close,  L.  R.  4  Q.  B.  602; 
Old  Dominion  S.  S.  Co.  v.  McKenna  (C.  C.)  30  Fed.  48. 

266  A  provision  in  a  contract  between  stevedores  that  unless  the  mer- 
chants in  particular  cases  employ  one  of  the  contracting  parties  to  whom,  as 
between  themselves,  the  business  is  assigned  by  the  contract,  none  of  them 
will  accept  the  employment,  is  bad.  COLLINS  v.  LOCKE,  4  App.  Cas.  674. 
A  contract  between  a  brewers'  association  aiid  a  labor  union,  providing  that 
no  employe  of  the  former  shall  work  more  than  four  weeks  without  becoming 
a  member  of  the  latter,  is  void.  Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297. 
37  L.  R.  A.  802,  57  Am.  St.  Rep.  496.  A  liverymen's  association,  which  pro- 
hibits any  member  from  doing  business  with  any  person  who  does  not 
patronize  its  members  exclusively,  or  from  letting  a  hearse  to  a  person  for 
a  funeral  where  the  undertaker  patronizes  nonunion  members,  is  illegal, 
Gatzow  V.  Buening,  1(H)  Wis.  1,  81  N.  W.  1003,  49  L.  R.  A.  475,  SO  Am.  St. 
Rep.  1.     By-laws  of  a  builders"  association,  which  require  members  to  pay  to 


318  LEGALITY   OF  OBJECT.  (Ch.  S 

Combinations  between  Employers. 

In  England  a  contract  between  employers  for  the  purpose  of  protect- 
ing their  interests  against  combinations  of  workmen,  by  which  they 
agree  to  regulate  wages  and  hours  of  work,  or  wholly  or  partially  to 
suspend  work  for  a  time,  as  the  majority  may  resolve,  has  been  held  in 
restraint  of  trade,  as  depriving  each  of  the  control  of  his  own  business, 
and  therefore  not  enforceable.^^'^  In  Pennsylvania,  on  the  other  hand, 
it  has  been  held  that  where  employes  enter  into  a  combination,  which 
under  the  statutes  of  the  state  is  lawful,  to  control  by  artificial  means 
the  supply  of  labor,  preparatory  to  a  demand  for  an  advance  in  wages, 
a  combination  of  employers  to  resist  such  artificial  advance  is  lawful,, 
since  it  is  not  made  to  lower  the  price  of  labor  as  regulated  by  supply 
and  demand.268  .l,--0~ 

SAME— EXEMPTING   FROM   LIABILITY    FOB   NEGLIGENCE. 

173.  A  stipulation,  in  a  contract  betxreeu  master  and  servant,  that  the 

master  shall  not  be  liable  for  injuries  to  the  servant  caused  by 
the  negligence  of  the  master,  or  by  the  negligence  of  superior 
•  servants  for  -which  the  laxp  makes  the  master  liable,  is  contrary 

to  public  policy. 

174.  The  same  is  true  of  a  stipulation  in  a  contract  with  a  common 

carrier,  either  of  goods  or  passengers,  exempting  it  from  liabil- 
ity for  losses  or  injuries  caused  by  its  negligence. 

175.  The  same  is  true,  in  some  jurisdictions,  of  a  stipulation  by  a  tel- 

egraph company  exempting  it  from  liability  for  error,  delay, 
or  nondelivery;  but  as  to  this  there  is  a  direct  conflict  of  opin- 
ion. 


-(  /,U^  (^.....VJUXt  -  CM . 


According  to  the  better  opinion,  a  master  cannot,  by  stipulation  in 
the  contract  with  his  servant,  exempt  himself  from  liability  for  injuries 
to  tlie  servant  caused  by  his  negligence.  Such  a  stipulation  is  void  as 
being  contrary  to  public  policy.^^®     It  has  also  been  held  that,  since  the 

the  association  G  per  cent,  on  all  contracts  taken  by  them,  and  to  submit  all 
bids  lirst  to  the  association,  and  pi'ovide  that  the  lowest  bidder  shall  add 
G  per  cent,  to  his  bid  before  it  is  submitted  to  the  owner,  are  void.  Mil- 
waukee Masons'  &  Builders'  Ass'n  v.  Niezerowski,  95  Wis.  129,  70  N.  W.  166, 
37  L.  R.  A.  127,  GO  Am.  St.  Rep.  97.  To  same  effect,  Bailey  v.  Association, 
103  Tenn.  99,  52  S.  W.  G52,  46  L.  R.  A.  561. 

20  7  Hilton  V.  Eckersley,  6  El.  &  Bl.  47,  66. 

26  8  Cote  V.  Murphy,  159  Pa.  420,  28  Atl.  190,  23  L.  R.  A.  135,  39  Am.  St  Rep. 
686.  "The  moment  the  legislature  relieves  one,"  said  tlie  court,  "and  by 
far  the  larger  number,  of  the  citizens  of  the  commonwealth  from  the  common- 
law  prohibitions  against  combinations  to  raise  the  price  of  labor,  down  went 
the  foundation  on  which  common-law  conspiracy  was  based  as  to  that  par- 
ticular subject." 

268  Runt  V,  Herring,  2  Misc.  Rep.  105,  21  N.  Y.  Supp.  244,  and  cases  there 


§§  J.73-1T5)      AGREEMENTS    CONTRARY   TO   PUBLIC   POLICY.  319 

liability  imposed  upon  a  railroad  company  by  law  for  injuries  to  chcir 
servants  caused  by  the  carelessness  of  those  who  are  superior  in  author- 
ity and  control  over  them  is  based  upon  considerations  of  public  policy, 
for  this  reason  a  railroad  company  cannot  stipulate  with  its  employes,  at 
the  time  and  as  a  part  of  their  contract  of  employment,  that  such  lia- 
bility shall  not  attach  to  it.  "Such  liability  is  not  created  for  the  protec- 
tion of  the  employes  simply,  but  has  its  reason  and  foundation  in  a  pub- 
lic necessity  and  policy,  which  should  not  be  asked  to  yield  or  surrender 
to  mere  private  interests  and  agreements."  ^^° 

A  railroad  company,  shipowner,  or  other  common  carrier  cannot,  by 
stipulation  in  contracts  of  carriage,  exempt  itself  from  liability,  or  limit 
its  liability,  for  injury  to  passengers  or  goods  caused  by  its  own  negli- 
gence or  the  negligence  of  its  servants.  Such  a  stipulation  is,  in  this 
country  at  least,  regarded  as  contrary  to  public  policy.^" ^  It  may,  how- 
ever, exempt  itself  from  losses  or  injuries  occurring  from  other  causes 
than  its  own  negligence,  as  from  accident,  and  for  which  it  would  be 
liable  as  an  insurer.^^^ 

cited ;  Louisville  &  N.  R,  Co.  v.  Orr,  91  Ala.  548,  8  South.  3G0 ;  Richmond  & 
D.  R.  Co.  V.  Jones,  92  Ala.  218,  9  South.  27G;  Roesner  v.  Hermann  (C.  C) 
8  Fed.  782.  See  Purdy  v.  Railroad  Co.,  125  N.  Y.  2m,  20  N.  E.  255.  21  Am.  St. 
Rep.  736.  Where  an  employ^  joins  a  relief  association  to  which  he  con- 
tributes, and  his  employer  guaranties  the  obligations,  etc.,  the  employe's  agree- 
ment in  his  application  for  membership  that  acceptance  of  benefits  from 
the  association  for  an  injury  shall  release  the  company  from  damages  is 
not  void  as  against  public  policy,  since  he  has  the  right  of  election  to  accept 
benefits  or  sue.  Otis  v.  I'ennsylvania  Co.  (C.  C.)  71  Fed.  13G;  Maine  v.  Rail- 
road Co.,  109  Iowa,  2G0,  70  N.  W.  G30;  Pittsburg,  C,  C.  &  St.  L.  Ry.  Go.  v. 
Cox,  55  Ohio,  497,  45  N.  E.  G41,  35  L.  R.  A.  507;  Eckman  v.  Railroad  Co., 
169  111.  312,  48  N.  E.  496.  38  U  R.  A.  750;  Pittsburg,  C,  C.  &  St.  L.  Ry.  Co. 
V.  Moore,  152  Ind.  a4.5,  53  N.  E.  290,  44  K  R.  A.  638;  Hamilton  v.  Railroad 
Co.  (C.  C.)  118  Fed.  92. 

27  0  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Spangler,  44  Ohio  St.  471,  8  N.  E.  467,  58 
Am.  Rep.  833;  Johnson's  Adm'x  v.  Railroad  Co.,  86  Va.  975,  11  S.  E.  829; 
Hissong  V.  Railroad  Co.,  91  Ala.  514,  8  South.  776.  Contra,  Western  &  A. 
R.  Co.  V.  Bishop,  50  Ga.  465  (holding  such  a  contract  valid  so  far  as  it  does  not 
waive  any  criminal  neglect  of  the  company  or  its  principal  officers;  but  this 
case  expressly  declares  tliat  contracts  contravening  public  policy  will  not  be 
enforced). 

271  New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  857,  21  L.  Ed.  627;  Arm- 
strong V.  Express  Co.,  159  Pa.  640,  28  Atl.  448;  Abrams  v.  Railway  Co..  87 
Wis.  485,  58  N.  W.  780,  41  Am.  St.  Rep.  55;  Schulzc-Berge  v.  The  Guildhall 
(D.  C.)  58  Fed.  796;  Monroe  v.  The  Iowa  (D.  C.)  50  Fed.  501;  Johnson  v.  Rail- 
way Co.,  69  Miss.  191,  11  South.  104,  30  Am.  St.  Rep.  534;  Louisville  &  N.  R. 
Co.  V.  Grant,  99  Ala.  325,  13  South.  599;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Eddins, 
7  Tex.  Civ.  App.  116,  26  S.  W.  161;  Louisville  &  N.  R.  Co.  v.  Dies,  91  Teun. 
177,  IS  S.  W.  26G,  30  Am.  St.  Rep.  871;  Union  Pac.  Ry.  Co.  v.  Rainey,  19 
Colo.  225,  34  Pac.  996;  The  Hugo  (D.  C.)  57  Fed.  403;  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Lawler,  40  Neb.  356,  58  N.  W.  968;  St.  Joseph  &  G.  I.  R.  Co.  v. 
Palmer,  38  Neb.  463,  56  N.  W.  957,  22  L.  R.  A.  335. 

272  Indianapolis,  D.  &  W.  R.  Co.  v.  Forsythe,  4  Ind.  App.  326,  20  N.  B. 


320  LEGALITY   OF  OBJECT.  (Ch.  8 

As  to  the  validity  of  stipulations  in  contracts  with  telegraph  com- 
panies for  the  transmission  of  messages,  there  is  a  direct  conflict. 
Many  cases  hold  that  a  stipulation  providing  that  the  liability  of  the 
company  for  any  mistake  or  delay  in  the  transmission  and  delivery  of 
a  message,  or  for  not  delivering  the  same,  shall  not  extend  beyond  the 
sum  received  for  sending  it  unless  the  sender  orders  the  message  to  be 
repeated  by  sending  it  back  to  the  office  which  first  received  it,  and  pays 
half  the  regular  rate  additional,  is  a  reasonable  precaution  to  be  taken 
by  the  company,  and  not  against  public  policy,  except  in  so  far  as  it 
would  exempt  the  company  from  liability  for  willful  misconduct  or 
gross  negligence. ^^^  Another  class  of  cases  holds  that  there  can  be  no 
consideration  for  such  a  stipulation  on  the  part  of  the  sender  of  the 
message,  and,  furthermore,  that  it  is  contrary  to  public  policy,^''*  Still 
another  class  of  cases,  while  upholding  such  a  stipulation  in  part,  hold 


1138;  Davis  v.  Railroad  Co.,  66  Vt  290,  29  All.  313,  44  Am.  St  Rep.  852; 
Hartford  Fire  Ins.  Co.  v.  Railroad  Co.,  175  U.  S.  91,  20  Sup.  Ct.  33,  44  L.  Ed. 
84.  It  may  limit  its  liability  to  injuries  received  on  its  own  line,  Texas  & 
P.  Ry.  Co.  V.  Smith  (Tex.  Civ.  App.)  24  S.  W.  505;  Galveston,  H.  &  S.  A.  R, 
Co.  V.  Short  (Tex.  Civ.  App.)  25  S.  W.  142;  McCann  v.  Eddy  (Mo.  Sup.)  27  S. 
W.  541;  McEacheran  v.  Railroad  Co.,  101  Mich.  264,  59  N.  W.  612;  Coles  v. 
Railroad  Co.,  41  111.  App.  G07;  Dunbar  v.  Railway  Co.,  36  S.  C.  110,  15  S.  Ew 
357,  31  Am.  St.  Rep.  860;  but  not  when  it  is  a  partner  with  the  connecting 
line,  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilbanks,  7  Tex.  Civ.  App.  489,  27  S.  W.  302. 
It  may  exempt  itself  from  liability  after  unloading,  where  it  provides  a  cov- 
ered warehouse  into  which  the  cargo  is  discharged,  and  the  time  and  place 
of  discharge  are  easily  ascertainable  by  the  consignees.  Constable  v.  Steam- 
ship Co.,  154  U.  S.  51,  14  Sup.  Ct.  1062,  38  L.  Ed.  903.  Express  messenger, 
accompanying  express  car  in  pursuance  of  contract  between  railroad  com- 
pany and  express  company,  held  not  a  passenger,  and  cannot  recover  from 
railroad  company  for  injuries  in  collision  where  contract  between  companies 
exempts  from  such  liability  and  his  own  contract  of  employment  assimies 
such  risk.  Baltimore  &  O.  S.  W.  R.  Co.  v.  Voight,  176  U.  S.  498,  20  Sup.  Ct. 
365,  44  L.  Ed.  560. 

2T3  I'iiey  V.  Telegraph  Co.,  6  Misc.  Rep.  221,  26  N.  Y.  Supp.  532;  Primrose 
v.  Telegraph  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883;  Griunell  v. 
Telegraph  Co.,  113  Mass.  299,  18  Aiu.  Rep.  485;  Western  Union  Telegraph  Co. 
v.  Carew,  15  Mich.  525;  Camp  v.  Telegraph  Co.,  1  Mete.  (Ky.)  164,  71  Am. 
Dec.  4G1;  Breese  v.  Telegraph  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526;  Passmore 
V.  Telegraph  Co.,  78  Pa.  238;  Western  Union  Telegraph  Co.  v.  Blanchard,  68 
Ga.  299  (45  Am.  Rep.  486,  note,  collecting  cases);  Coit  v.  Telegraph  Co.,  130 
Cal.  657,  63  Pac.  83,  53  L.  R.  A.  678,  80  Am.  St.  Rep.  153. 

274  Brown  v.  Telegraph  Co.,  Ill  N.  C.  187,  16  S.  E.  179,  17  L.  R.  A.  648, 
32  Am.  St.  Rep.  793;  Tyler  v.  Telegraph  Co.,  GO  111.  421,  14  Am.  Rep.  38; 
Western  Union  Telegraph  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279;  Weitz 
V.  Telegraph  Co.,  8  Utah,  499,  33  Pac.  136;  Western  Union  Telegraph  Co.  v, 
T>inn,  87  Tex.  7,  26  S.  W.  490,  47  Am.  St.  Rep.  r)8;  Western  Union  Telegraph 
Co.  V.  Cook,  61  Fed.  624,  9  C.  C.  A.  680;  Candee  v.  Telegraph  Co.,  34  Wis. 
477,  17  Am.  Rep.  452;  Bartlett  v.  Same,  62  Me.  218,  16  Am.  Rep.  437;  West- 
ern Union  Telegraph  Co.  v.  Chamblee,  122  Ala.  42i>,  25  South.  232,  82  Am.  St. 
Rtp.  89. 


>^'  f. 


S     ' 


f^ 


lU^ 


§  176)  EFFECT   OF  ILLEGALITY.  321 

that  it  cannot  exonerate  the  company  from  Hability  for  damages  caused 
by  defective  instruments,  or  a  want  of  skill  or  ordinar/xare  on  the  part 
of  its  operators. ^^^ 

EFFECT  OF  ILI^GALITY. 

We  come  now  to  the  second  branch  of  the  subject  of  illegality  in 
contract, — its  effect  upon  the  validity  of  a  contract.  The  effect  of  ille- 
gality upon  the  validity  of  contracts  in  which  it  appears  varies  accord- 
ing to  the  circumstances.  It  may  affect  the  whole,  or  only  a  part,  of  a 
contract,  and  the  legal  and  illegal  parts  may  or  not  be  capable  of  sep- 
aration. The  direct  object  of  a  contract  may  be  the  doing  of  an 
illegal  act,  or  the  direct  object  may  be  innocent,  though  the  contract  is 
designed  to  further  an  illegal  purpose.  The  parties  may  both  be  igno- 
rant, or  both  be  aware,  of  the  illegality  which  remotely  or  directly  affects 
the  transaction;  or  one  may  be  innocent  of  the  objects  intended  by  the 
other.  Securities  may  be  given  for  money  due  upon,  or  money  ad- 
vanced for,  an  illegal  transaction,  and  the  vahdity  of  such  securities 
depends  upon  various  considerations.  Finally,  though  the  contract  is 
illegal,  certain  considerations  may  require  that  some  relief  be  granted 
to  one  of  the  parties,  notwithstanding  his  fault.  This  is  a  very  com- 
plex and  difficult  branch  of  the  law,  and  on  some  of  the  questions  sug- 
gested there  is  a  conflict  of  opinion.  All  we  can  do  is  to  state  the  gen- 
eral principles  which  govern,  and  call  attention  to  those  points  on  which 
there  is  a  conflict.^'^* 


SAME— AGREEMENTS  PARTLY  ILLEGAL. 

176.    'Wliere  an  agreement  is  illegal  in  part  only,  the   part  which  is 
i/  good  may  be  enforced,  provided  it  can  be  separated  from  the 

part  which  is  bad,  but  not  otherwise.    La  detail: 

(a)  An  indivisible  promise  to  do  several  acts,  some  of  which  are  ille- 

gal, or  a  single  promise  to  do  a  legal  act,  based  on  several  con- 
siderations,  one  of  which  is  illegal,  is  wholly  void. 

(b)  But  where  distinct  promises,  some  of  xvhich  are  good,  are  based 

on  a  good  consideration,  or  where  there  are  distinct  promises 
based  on  several  distinct  considerations,  some  of  which  are 
good,  the  good  promises,  or  promises  based  on  good  considera- 
tions, may  be  enforced. 

An  agreement  may  consist  of  a  single  promise  based  on  a  single  con- 
sideration. If  either  the  promise  or  the  consideration  is  illegal,  there 
is  no  difficulty  in  pronouncing  the  agreement  void.^^^     On  the  other 

27  5  ST\-eatland  v.  Telegraph  Co.,  27  Iowa,  433,  1  Am.  Kep.  2S5. 
2  76  Anson,  Cont.  (4th  Ed.)  189. 

»7T  Dennehy  v.  McXulta,  86  Fed.  S25,  30  C.  O.  A.  422,  41  L.  R.  A.  COO. 
Clakk  Cont.  (2d  Ed.)— 21 


322  LEGALITY   OF   OBJECT.  (Ch.  8 

hand,  there  may  be  several  promises  or  considerations,  some  of  which 
only  are  illegal,  and  in  these  cases  the  agreement  may  or  may  not  be 
wholly  void,  according  to  the  circumstances.  Whether  it  is  wholly  void 
or  not  will  depend  upon  whether  it  is  one  entire  and  indivisible  agree- 
ment, or  whether  it  is  divisible,  so  that  the  good  may  be  separated  from 
the  bad.  "If  any  part  of  an  agreement  is  valid,  it  will  avail  pro  tanto, 
though  another  part  of  it  may  be  prohibited  by'  statute;  provided  the 
statute  does  not,  either  expressly  or  by  necessary  implication,  render 
the  whole  void ;  and  provided,  furthermore,  that  the  sound  part  can  be 
separated  from  the  unsound,  and  be  enforced  without  injustice  to  the 
defendant."  ^''^  "If  the  part  which  is  good  depends  upon  that  which  is 
bad,  the  whole  is  void ;  and  so  I  take  the  rule  to  be  if  any  part  of  the 
consideration  be  malum  in  se,  or  the  good  and  void  consideration  be 
so  mixed,  or  the  contract  so  entire,  that  there  can  be  no  apportion- 
ment." 2-» 

At  one  time  a  distinction  was  made  in  the  application  of  this  principle 
between  illegality  by  reason  of  a  statute  and  illegality  at  common  law. 
The  judges,  fearing  that  statutes  might  be  eluded,  laid  it  down  that 
"the  statute  is  like  a  tyrant, — where  he  comes  he  makes  all  void ;  but 
the  common  law  is  like  a  nursing  father, — makes  only  void  that  part 
where  the  fault  is,  and  preserves  the  rest."  Such  a  distinction,  however, 
is  no  longer  recognized.^*" 

The  above  are  the  general  rules,  but  it  will  aid  us  in  understanding 
the  doctrine  if  we  state  the  law  more  in  detail. 

Same — Indivisible  Agreements. 

If  a  promise  to  do  several  acts  is  indivisible,  and  is  in  part  illegal,  it 
cannot  be  enforced  as  to  that  part  which  is  legal,  but  the  whole  agree- 
ment is  void.^®^  This  rule  is  too  clear  to  need  explanation.  The  only 
difficulty  is  in  determining  whether  the  promise  is  divisible;  but  this 
is  a  question  of  interpretation  of  contracts. 

Where  the  agreement  consists  of  one  promise  made  upon  several 

27  8  Rand  V.  Mather,  11  Cusb.  (Mass.)  1,  59  Am.  Dec.  131,  overruling  Loomis 
V.  Newhall,  15  Pick.  (Mass.)  159 ;    BIXBY  v.  MOOR,  51  N.  H.  402. 

27»  2  Kent,  Comm.  467;  U.  S.  v.  Bradley,  10  Pet.  343,  9  L.  Ed.  448;  HANDY 
V.  PUBLISHING  CO.,  41  Minn.  1S8,  42  N.  W.  872,  4  L.  R.  A.  466,  16  Am. 
St.  Rep.  095;  Santa  Clara  Valley  Mill  &  Lumber  Co.  v.  Hayes,  76  Cal.  387, 
18  Pae.  391,  9  Am.  St.  Rep.  211. 

2  80  Anson,  Cont.  (4th  Ed.)  189;  Pickering  v.  Railway  Co.,  L.  R.  3  C.  P.  250; 
State  V.  Findley,  10  Ohio,  51;  Rand  v.  Mather,  11  Cush.  (Mass.)  1,  59  Am. 
Dec.  131;  U.  S.  v.  Bradley,  10  Pet.  343,  9  L.  Ed.  448;  Hj-nds  v.  Hays,  25  Ind. 
31. 

281  Crawford  v.  Morrell,  8  Johns.  (N.  Y.)  253;  Thayer  v.  Rock,  13  Wend. 
(X.  Y.)  53;  Leavitt  v.  Palmer,  3  N.  Y.  19,  51  Am.  Dec.  333;  McMullen  v.  Hoff- 
man, 174  U.  S.  639,  19  Sup.  Ct.  8;^9.  43  L.  Ed.  1117;  Foote  v.  Nickerson,  70 
N.  H.  496,  48  Atl.  1088,  54  L.  R.  A.  554;  Union  Cent.  Life  Ins.  Co.  r.  Berlin, 
90  Fed.  779,  33  O.  C.  A.  274. 


§  176)  EFFECT   OF   ILLEGALITY.  323 

considerations,  some  of  which  are  bad  and  some  good,  here,  also,  the 
promise  is  wholly  void,  for  it  is  impossible  to  say  whether  the  legal  or 
the  illegal  portion  of  the  consideration  most  affected  the  mind  of  the 
promisor,  and  induced  his  promise.-*^  An  illustration  of  this  rule  is  in 
the  case  of  sales  of  goods,  some  of  which  it  is  illegal  to  sell.  Where 
each  article  is  sold  for  a  separate  price,  the  price  of  those  articles  which 
it  was  lawful  to  sell  may  be  recovered. ^®^  If,  however,  a  note  is  given 
for  the  price  of  all  the  articles,  there  can  be  no  recovery  at  all  on  it,  for 
it  is  based  in  part  on  an  illegal  consideration.^^* 

The  consideration,  to  bring  a  case  within  this  principle,  must  be  illegal 
and  not  merely  void.  If  part  of  the  consideration  is  merely  void,  and 
there  is  still  a  valid  consideration  left,  it  will  support  the  promise,  for, 
as  we  have  seen,  the  law  does  not  undertake  to  determine  whether  the 
consideration  is  adequate.  It  is  only  where  part  of  the  consideration  is 
illegal  that  it  taints  the  entire  agreement.^®" 

282  FEATHERSTON  V.  HUTCHINSON,  Cro.  Eliz.  199;  TRIST  v.  CHILD, 
21  Wall.  441,  22  L.  Ed.  623;  State  v.  Board,  35  Ohio  St.,  at  page  519;  BIXBY  v. 
MOOR,  51  N.  H.  402;  Wlsuer  v.  Bardwell,  38  Mich.  278;  Saratoga  County 
Bank  v.  King,  44  N.  Y.  87;  Bredin's  Appeal,  92  Pa.  241,  37  Am.  Rep.  677; 
Sumner  v.  Summers,  54  Mo.  340;  Perkins  v.  Cummings,  2  Gray  (Mass.)  258; 
BISHOP  V.  PALMEHi,  146  Mass.  469,  16  N.  E.  290,  4  Am.  St.  Rep.  339;  Mc- 
Quade  v.  Rosecrans,  36  Ohio  St.  442;  Tobey  v.  Robinson,  99  111.  222;  James 
V.  Jellison,  94  Ind.  292,  48  Am.  Rep.  151;  Ricketts  v.  Hai-vey,  106  Ind.  564,  6 
N.  E.  325;  Hajiies  v.  Rudd,  102  N.  Y.  372,  7  N.  E.  287,  55  Am.  Rep.  815; 
Pettit's  Adm'r  v.  Pettit's  Distributees,  32  Ala.  288;  Woodruff  v.  Hinman,  11 
Vt.  592,  34  Am.  Dec.  712;  Chandler  v.  Johnson,  39  Ga.  85;  Gage  v.  Fisher,. 
5  N.  D.  297,  65  N.  W.  809,  31  L.  R.  A.  557;  Edwards  Co.  v.  Jennings,  89  Tex. 
618,  35  S.  W.  1053;  Geer  v.  Frank,  179  111.  570,  53  N.  E.  965,  45  L.  R.  A.  110. 
But  see  Pierce  v.  Pierce,  17  Ind.  App.  107,  46  N.  E.  480;  FISHELL  v. 
GRAY,  60  N.  J.  Law,  5.  37  Atl.  606;  Rosenbamn  v.  Credit  System  Co.,  65  N. 
J.  Law,  255,  48  Atl.  237,  53  L.  R.  A.  449;  KING  v.  KING,  63  Ohio  St.  363, 
59  N.  E.  Ill,  52  L.  R.  A.  157,  81  Am.  St.  Rep.  635.  Thus,  in  Kansas,  it  is 
held  that  a  chattel  mortgage  is  entirely  void  if  illegal  as  to  one  of  the  articles 
mortgaged  (intoxicating  liquors).  Gcrlach  v.  Skinner,  34  Kan.  86,  8  Pac. 
257,  55  Am.  Rep.  240;  Flersheim  v.  Gary,  39  Kan.  178,  17  Pac.  825.  No 
recovery,  for  instance,  can  be  had  on  the  quantum  meruit  for  services  ren- 
dered in  the  grocery  part  of  the  business  under  a  contract  to  work  for  agreed 
wages  as  bartender  and  clerk  for  a  dealer  in  groceries  and  liquors,  the  sale 
of  the  latter  being  prohibited.  Sullivan  v.  Horgan,  17  R.  I.  109,  20  Atl.  232, 
9  L.  R.  A.  110.  A  note,  in  consideration  of  both  past  and  future  cohabitation, 
is  void  in  toto.     Massey  v.  Wallace,  32  S.  C.  149,  10  S.  E.  937. 

2  83  Post,  p.  824,  note  287. 

284  Widoe  v.  Webb,  20  Ohio  St  431,  5  Am.  Rep.  664;  Deering  v.  Chapman, 
22  Me.  4SS,  39  Am.  Dec.  592;  Kidder  v.  Blake,  45  N.  H.  530;  Allen  v.  Pearce, 
84  Ga.  006,  10  S.  E.  1015;  Braitch  v.  Guelick.  37  Iowa,  212;  Gotten  v.  Mc- 
Kenzie,  57  Miss.  418;  Oakes  v.  Merrifield,  93  Me.  297,  45  Atl.  31.  But  see 
Shaw  V.  Carpenter,  54  VL  155,  41  Am.  Rep.  837;  Wilcox  v.  Daniels,  15  R.  I. 
261,  3  Atl.  204. 

28B  Cobb  V.  Cowdery,  40  Vt.  25,  94  Am.  Dec.  370;  Widoe  v.  Webb,  20  Ohio 
St.  431,  5  Am.  Rep.  664;    ailte,  p.  112.     See,  also,  Rosenbaum  v.  Credit  Sya- 


324  LEGALITY   OF   OBJECT.  (Cll.  8 

Same — Divisible  Agreements. 

Where  an  agreement  consists  of  several  promises  based  upon  several 
considerations,  the  fact  that  one  or  more  of  the  considerations  is  illegal 
will  not  avoid  all  the  promises,  if  those  which  are  based  upon  legal  con- 
siderations are  severable  from  the  others. ^^"  Thus,  in  the  case  of  the 
sale  of  various  articles,  some  of  which  it  is  illegal  to  sell,  if  each  article 
is- sold  for  a  separate  price,  so  that  the  consideration  is  apportionable, 
the  price  of  those  which  it  was  lawful  to  sell  may  be  recovered.^*^ 

Again,  if  there  are  several  promises,  made  for  a  lawful  consideration, 
some  of  which  are  legal  and  some  illegal,  the  legal  promises  may  be 
enforced. ^^®  At  an  early  day  it  was  declared  "that  if  some  of  the  cov- 
enants of  an  indenture  or  the  conditions  indorsed  upon  a  bond  are 
against  law,  and  some  are  good  and  lawful ;  that  in  this  case  the  cov- 
enants or  conditions  which  are  against  law  are  void  ab  initio,  and  the 
others  stand  good."  ^'^  In  other  vvords,  a  lawful  promise,  made  upon 
a^lawful  consideration^  is,not  invalid  merely  because  an  unlawful  prom- 
ise was  made  at  the  same  time  and  for  ihe  same^cgnsideration.'^®"  This 
principle  is  frequently  applied  to  contracts  in  restraint  of  trade.  An 
agreement,  for  instance,  not  to  engage  in  business  at  a  certain  place, 
or  any  other  place,  though  void  as  to  the  general  restriction,  may  be 
enforced  as  to  the  partial  restriction,  provided  tlie  restriction  is  so 
worded  as  to  be  divisible." ^^ 

tem  Co.,  65  N.  J.  Law,  255,  48  Atl.  2.37,  53  L.  R.  A.  449;  KING  v.  KING,  63 
Ohio  St.  3(>3,  59  N.  E.  Ill,  52  L.  R.  A.  157,  81  Am.  St.  Kep.  635. 

2  86  Robinson  v.  Green,  3  Mete.  (j\Iass.)  159. 

287  Ante,  p.  323,  note  284.  See  Carleton  v.  Woods,  28  N.  H.  290;  Shaw  v. 
Carpenter,  54  Vt.  155,  41  Am.  Rep.  837;  Wallier  v.  Lovell,  28  N.  H.  138,  61 
Am.  Dec.  605;  Boyd  v.  Eaton,  44  Me.  51,  69  Am.  Dec.  83;  Chase's  Ex'rs  v. 
Burkholder,  18  Pa.  48.  If  a  sale  of  a  nimiber  of  articles  is  for  a  gross  price,  the 
contract  is  indivisible,  and,  if  a  sale  of  some  is  prohibited,  none  of  the  price 
can  be  recovered.  Eadd  v.  Dillingham,  34  Me.  316.  And  see  Holt  v.  O'Brien, 
15  Gray  (Mass.)  311. 

28  8  Bank  of  Australia  v.  Breillat,  6  Moore,  P.  C.  152,  201;  U.  S.  v.  Bradley, 
10  Pet  343,  9  L.  Ed.  448;  State  v.  Board,  35  Ohio  St.  519;  State  v.  Findley, 
10  Ohio,  51;  Union  Locomotive  &  Express  Co.  v.  Railway  Co.,  35  N.  J.  Law, 
240:  Stewart  v.  Railway  Co.,  38  N.  J.  Law,  at  page  520;  Presbury  v.  Fisher, 
18  Mo.  50;  Gelpcke  t.  City  of  Dubuque,  1  Wall.  175,  17  L.  Ed.  520;  Pennsyl- 
vania Co.  T.  Wontz,  37  Ohio  St.  333;  Ware  v.  Curry,  67  Ala.  274;  U.  S.  v. 
Hodgson,  10  Wall.  395,  19  L.  Ed.  937;  U.  S.  v.  Mora,  97  U.  S.  413,  24  L.  Ed- 
1013.     Contra,  LINDSAY  v.  SMITH,  78  N.  C.  328,  24  Am.  Rep.  463. 

280  PIGOT'S  CASP:,  11  Co.  Rep.  27b. 

290  Pollock,  Cont.  (3d  Ed.)  337. 

231  Peltz  V.  Eichele,  62  Mo.  171;  Dean  v.  Emerson,  102  Mass.  480;  Mallon 
V.  May,  11  Mees.  &  W.  653;  Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep. 
153;  Thomas  v.  Miles'  Adm'r,  3  Ohio  St.  275;  Davies  v.  Lowen,  64  Law  T. 
655;  Haynes  v.  «Dorman  [1899]  2  Ch,  13;  Smith's  Appeal,  113  Pa.  579,  6 
Atl.  251;  Rosenbaum  v.  Credit  System  Co.,  65  N.  J.  Law,  255,  48  Atl.  237, 
53  L.  R.  A.  449.     Contra,  More  v.  Bonnet,  40  Cal.  251,  6  Am.  Rep.  62L    A 


§§  177-178)  EFFECT   OF   ILLEGALITY.  325 

Illustrations  of  this  rule  are  also  found  in  cases  where  a  rnrpftj-ptinn 
has  entered  into  an  agreement,  some  parts  of  which  are  ultra  vires,  and 
so,  in  a  sense,  unlawful.  It  is  held  in  such  cases  that,  "where  you  can- 
not sever  the  illegal  from  the  legal  part,  *  *  *  the  contract  is  alto- 
gether void ;  but  where  you  can  sever  them,  whether  the  illegality  be 
created  by  statute  or  by  the  common  law,  you  may  reject  the  bad  part 
and  retain  the  good."  ^*^  These  cases  serve  as  an  illustration,  but  it 
must  be  remembered  that  agreements  of  this  nature  are  invalidated 
not  so  much  by  the  illegality  of  their  objects  as  by  the  incapacity  of  the 
corporation  to  bind  itself.^^^ 

SAME— OBJECT  UNLAW^FUL  BUT  INTENTION  INNOCENT. 

177.  'Where  the  direct  object  is  illegal,  the  agreement  is  void,  though 

the  parties   did  not  know  of  the  illegality,  since  ignorance   of 
IsLxv  is  no  excuse. 

178.  EXCEPTIONS— This  rrde  does  not  ^pply 

(a)  "Where  the  agreement  can  be,  and  is,  legally  performed  in  a  way 

not  originally  contemplated,  if  there  ixras  no  intention  to  break 
the  law. 

(b)  W^here  a  party  performs  his  part  in  ignorance  of  a  fact  w^hich 

renders  performance  illegal,  and  w^hich  he  is  not  bound  to  know^. 

Where  the  direct  object  of  the, parties  is  to  do  an  .ilkgal_a£jL  the 
agreement  is  void.  In  such  a  case  it  is  immaterial'  that  they  did  not 
know  their  object  was  illegal,  for  ignorance  of  law  is  no  excuse.^**  A 
contract,  for  instance,  in  violation  of  a  statute,  cannot  be  sustained  on 
the  ground  that  the  parties  did  not  know  of  the  existence  of  the  statute. 

Ignorance  of  illegality,  however,  may  become  important  if  the  con- 
tract admits  of  being  performed,  and  is  in  fact  performed,  in  a  legal 
manner,  though  a  detail  in  the  performance  as  originally  contemplated 
by  the  parties  would,  unknown  to' them,  have  directly  resulted  in  a 
breach  of  the  law.  In  a  leading  case  on  this  point  the  defendant  had 
chartered  the  pl'aintiflF's  ship  to  take  a  cargo  of  hay  from  a  port  in 
France  to  London,  the  cargo  to  be  taken  from  the  ship  alongside  and 
landed  at  a  certain  wharf.     Unknown  to  the  parties  an  order  in  council 

contract  by  which  one  formerly  dealing  in  oil  in  the  city  of  H.  agreed  not  to 
prosecute  such  business  within  the  state,  the  city  of  I.  excepted,  for  five 
years,  is  not  divisible,  and,  being  void  as  to  the  restriction  vrithiu  the  state, 
is  void  as  to  the  resti'iction  in  the  city  of  H.  Consumers'  Oil  Go.  v.  Nimne.- 
malver,  142  Ind.  5G0,  41  X.  E.  104S,  51  Am.  St.  Rep.  103. 

292  Pickering  v.  Railway,  L.  R.  3  C.  P.  25U;  State  T.  Boai'd,  35  Ohio  St. 
519. 

298  Ashbury  Carriage  Co.  v.  Kiche,  L.  R.  7  H.  L.  (553.  See  Anson,  Cont.  (Sth 
Ed.)  207. 

204  Favor  v.  Philbriclc,  7  N.  H.  32G;  Rosenbauui  v.  Credit  System  Co.,  64 
N.  J.  Law,  34,  44  Atl.  UCG. 


326  LEGALITY   OF   OBJECT.  (Ch.  8 

had  forbidden  the  landing  of  French  hay.  The  defendant  on  learning 
this,  instead  of  landing  the  cargo,  took  it  from  alongside  the  ship  in  the 
Thames  into  another  ship,  and  exported  it.  In  an  action  by  the  plain- 
tiff for  delay  of  his  vessel  the  defendant  set  up  the  unlawful  intention 
as  avoiding  the  contract,  but  without  success.  "We  quite  agree,"  it 
was  said  by  the  court,  "that  where  a  contract  is  to  do  a  thing  which 
cannot  be  performed  without  a  violation  of  the  law,  it  is  void,  whether 
the  parties  knew  the  law  or  not.  But  we  think  that,  in  order  to  avoid 
a  contract  which  can  be  legally  performed,  on  the  ground  that  there  was 
an  intention  to  perform  it  in  an  illegal  manner,  it  is  necessary  to  show 
that  there  was  the  wick.ed_intention  to  break  the  law ;  and,  if  this  be  so, 
the  knowledge  of  what  the  law  is  becomes  of  great  importance."  ^^° 

Mistake  of  Fact. 

Though  mistake  of  law  does  not  excuse,  it  is  otherwise  in  case  of 
mistake  of  fact.-^®  A  father,  for  instance,  may  recover  for  services  per- 
formed by  his  minor  son,  in  unlawfully  selling  intoxicating  liquors  if 
he  did  not  know  the  character  of  the  services  while  his  son  was  per- 
forming them.  In  reference  to  the  defense  of  illegality  in  such  a  case 
it  was  said :  "This  defense  is  founded  on  a  well-settled  rul'e  of  law, 
that  the  law  will  not  lend  its  aid  to  carry  into  effect  any  agreement 
made  for  the  purpose  of  accomplishing  things  expressly  prohibited  by 
law.  *  *  *  The  only  question  is  whether  it  applies  to  this  case.  If 
the  plaintiff  did  not  place  his  son  in  the  service  of  the  defendant  for  the 
purpose  of  selling  liquor  illegally,  more  especially  if  he  did  not  consent 
to  it  or  know  of  it,  then  he  is  chargeable  with  no  violation  of  law ;  and 
being,  by  the  general  rule  of  law,  entitled  to  compensation  for  the  serv- 
ices of  his  son,  the  defense  is  not  maintained,"  ^^'^ 

So,  also,  it  has  been  held  that  an  actor  may  maintain  an  action  for 
his  services  in  an  unlicensed  theatrical  exhibition,  unless  it  appears  that 
he  knew  that  his  employer  had  no  license.  As  said  in  such  a  case :  "It 
is  ignorance  of  a  fact,  and  not  of  the  law,  that  saves  the  plaintiff's  case. 
He  undoubtedly  knew,  or  was  bound  to  know,  that  unlicensed  theatrical 
exhibitions  were  unlawful ;  but  he  was  not  bound  to  know  that  the  de- 
fendants had  no  license,  and  were  doing  unlawful  acts."  ^®® 

295  WAUGH  V.  MORRIS,  L.  R.  8  Q.  B.  202.     See  FOX  v.  ROGERS,  171 

Mass.  .540,  50  N.  E.  1(M1. 

298  Clark,  Cr.  Law  (2d  Ed.)  82. 

207  Emery  v.  Kempton,  2  Gray  (Mass.)  257.  If,  however,  an  agent  sells 
liquor,  for  instance,  knowing  it  is  to  be  retailed  in  violation  of  law,  his  prin- 
cipal is  charged  with  such  knowledge.  Fishel  v.  Bennett,  56  Conn.  40,  12 
Atl.  102. 

2  98  Roys  V.  Johnson,  7  Gray  (Mass.)  162  (cf.  STEWART  v.  THAYER, 
168  Mass.  519,  47  N.  E.  420,  GO  Am.  St.  Rep.  407).  And  see  BLOXSOME  v. 
WILLIAMS,  3  Barn.  &  C.  232;  Miller  v.  Hirschberg  (Or.)  37  Pac.  85.  As 
illustrating  this  principle  may  also  be  mentioned  bonds  given  to  indemnify 


§55  179-181)  EFFECT   OF   ILLEGALITY.  327 


SAME— OBJECT  INNOCENT  BUT  INTENTION  UNLAWFUL. 

179.  W^here  tlie  direct  object  of  an  agTeement  is  injiocent  in  itself,  bnt 
the  intention  of  both  parties  is  unlavirf  ul,  the  agreement  is  void- 
ISO.  'Where  the  direct  object  of  the  agreement  is  innocent,  but  the  in- 
tention of  one  of  the  parties  is  unlawful,  as  where  goods  are 
bought  or  money  borrow^ed  to  be  used  for  an  unlawful  purpose, 
the  fact  that  the  other  party  knoxes  of  such  purpose  does  not 
render  the  agreement  illegal,  unless 

(a)  He  shares  in  the  unlaAvful  intention. 

(b)  Or  does  some  act  in  aid  or  furtherance  of  the  other's  unlaw^ful   ^ 

design.  ..^.a  ,,,- X^  *-X«-»^<^  > 

(o)    Or  where  the  intention  is  to  commit  a  crime  xirhich  is  not  merely 
malum  prohibitum  or  of  inferior  criminality. 

181.  If  the  direct  object  of  the  agreement  is  innocent,  and  there  is  an 
unlaw^ful  intention  on  one  side  only,  of  w^hich  the  other  party 
is  ignorant,  the  latter  is  entitled  to  full  benefits  under  the 
agreement,  or,  while  the  agreement  is  still  executory,  he  may 
avoid  it. 

The  English  Rule. 

In  England  it  is  held  that,  where  the  direct  object  of  a  contract  is 
innocent  in  itself,  but  one  of  the  parties  has  in  contemplation  an  unlaw- 
ful purpose,  the  contract  is  void  if  both  parties  knew  of  the  illegal  pur- 
pose at  the  time  the  contract  was  entered  into;  that,  though  there  is 
nothing  illegal  in  a  loan  of  money  or  a  sale  of  goods,  still,  if  it  is  known 
by  the  lender  or  seller  that  the  other  party  intends  to  use  the  money  or 
the  goods  for  an  illegal  purpose,  neither  the  money  lent,  nor  the  goods 
supplied,  can  form  the  subject  of  an  action ;  that  the  whole  transaction 
is  void.  Thus,  where  the  plaintiff  supplied  a  brougham  to  a  prostitute, 
it  was  held  not  necessary  to  show  that  he  expected  to  be  paid  from  the 
proceeds  of  her  calling;  that  his  knowledge  of  her  calling  justified  the 
jury  in  inferring  knowledge  of  her  purpose;  and  that  this  knowledge 
rendered  the  contract  void.  "My  difficulty  was,"  said  Bramwell,  B., 
"whether,  though  the  defendant  hired  the  brougham  for  that  purpose, 
it  could  be  said  that  the  plaintiffs  let  it  for  the  same  purpose.  In  one 
sense  it  was  not  for  the  same  purpose.     If  a  man  were  to  ask  for  duel- 

an  officer  or  private  person  assisting  him  against  liability  for  seizing  goods 
under  attacliment.  or  for  arresting  a  person.  If  the  otfiLcer  knows  tlie  seizure 
or  arrest  to  be  unlawful,  the  bond  is  illegal;  but  it  is  otherwise  if  he  acts 
in  good  faith,  and  in  ignorance  of  the  illegality,  as  where  it  is  in  dispute 
whether  property  is  subject  to  levy.  Stone  v.  Hooker,  9  Cow.  (N.  Y.)  154; 
Marsh  v.  Gold,  2  Pick  (Mass.)  2So;  Ives  v.  Jones,  25  N.  O.  538,  40  Am.  Dec. 
421;  Anderson  v.  Fams,  7  Blackf.  (Ind.)  343;  Avery  v.  Halsey,  14  Pick. 
(Mass.)  174;  Davis  v.  Tibbats,  7  J.  J.  Marsh.  (Ky.)  264:  McCartney  v.  Shepard, 
21  Mo.  573,  64  Am.  Dec.  250;  Whitney  v.  Gammon,  103  Iowa,  363,  72  N.  W. 
551. 


328  LEGALITY   OF  OBJECT.  (Ch.  8 

ing  pistols,  and  to  say,  'I  think  I  shall  fight  a  duel  tomorrow,'  might 
not  the  seller  answer,  'I  do  not  want  to  know  your  purpose.  I  have 
nothing  to  do  with  it,  that  is  your  business.  Mine  is  to  sell  the  pistols, 
and  I  look  only  to  the  profit  of  the  trade.'  No  doubt  the  act  would  be 
immoral,  but  I  have  felt  a  doubt  whether  it  would  be  illegal ;  and  I 
should  feel  it  still  but  that  the  authority  of  Cannan  v.  Bryce  "^  and 
McKinnell  v.  Robinson  ^"^  concludes  the  matter."  ^"^ 

The  Rule  in  America. 

There  is  some  conflict  in  this  country  on  this  point,  but  the  cases,  on 
the  whole,  are  consistent  with  the  rule  that  the  qiere  knowledge  on  the 
p,ail-jaf.-Dn£..party  to  a  contract.thalL-the  other  contemplates  an  illegal 
purpose  will  not  invalidate  the  contract. ,  We  can  best  arrive  at  a  cor- 
rect understanding  of  the  rules  established  by  the  weight  of  authority  in 
this  country  by  taking  cases  of  sale s_of  goods  and  loans^f,  money  for 
illustrations,  as  it  is  generally  with  reference  to  them  that  the  question 
arises.  We  will  divide  the  subject  accordingly,  as  some  of  the  courts 
seem  to  have  made  a  distinction  between  sales  of  goods  and  loans 
of  money. 

Same — Sale. 

It  is  everywhere  settled  that,  if  it  is  a  part  of  the  contract  under 
which  the  goods  are  sold  that  they  shall  be  used  for  an  unlawful  pur- 
pose, then  the  contract  is  void,  and  the  price  cannot  be  recovered ;  and 
the  same  is  no  doubt  true  where  goods  are  sold  for  the  purpose  of 
enabling  the  buyer  to  accomplish  an  unlaw^ful  purpose,  for  in  the  latter 
case  there  is  an  unlawful  intention  on  the  part  of  both  parties.^"^    Some 

289  3  Barn.  &  Aid.  179.  «oo  3  Mees.  &  W.  435. 

301  PEARCE  V.  BROOKS,  K  R.  1  Exch.  218.  This  case  seems  to  have 
gone  further  than  the  cases  which  the  court  followed,  which  were  actions 
brought  for  the  recovery  of  money  lent  for  an  illegal  object,  the  money 
being  furnished  for  the  express  purpose  of  accomplishing  that  object. 

302  Talmage  v.  Pell,  7  N.  Y.  328;  St.  Louis  Fair  Ass'n  v.  Carmody,  151  Mo. 
5G(J,  52  S.  W.  3G5,  74  Am.  St.  Rep.  571.  It  has  been  held,  for  instance,  that 
if  liquor  is  sold  for  the  express  puiiiose  of  enabling  the  buyer  to  retail  it 
in  violation  of  law,  the  sale  is  illegal.  Kohn  v.  Melcher  (C.  C.)  43  Fed.  641, 
10  L.  R.  A.  439.  It  has  also  been  held  that  if  a  house  is  knowingly  leased 
or  furniture  sold  to  be  used  as  or  in  a  bawdy  house,  or  for  any  other  unlawful 
purpose,  the  rent  or  price  cannot  be  recovered.  Doughei-ty  v.  Seymour,  16 
Colo.  2SQ,  26  Pac.  823;  Ashbroolv  v.  Dale,  27  Mo.  App.  649;  Ernst  v.  Crosby, 
140  N.  Y.  364,  35  N.  E.  603;  Riley  v.  Jordan,  122  Mass.  231;  Edelmuth  v. 
McGan-en,  4  Daly  (N.  Y.)  467;  Ralston  v.  Boady,  20  Ga.  449;  Sherman  v. 
Wilder,  106  Mass.  537;  Reed  v.  Brewer,  90  Tex.  144.  37  S.  W.  418;  Chateau 
V.  Singla,  114  Cal.  91,  45  Pac.  1015.  33  L.  R.  A.  750,  55  Am.  St  Rep.  63; 
Standard  Furniture  Co.  v.  Van  Alstine,  22  Wash.  670,  62  Pac.  145,  51  L.  B. 
A.  889,  79  Am.  St.  Rep.  960.  Some  of  the  above  cases  come  very  close  to 
the  English  rule.  See,  also,  Mound  v.  Barker,  71  VL  253,  44  Atl.  346,  76  Am. 
St.  Rep.  767. 


§§  179-181)  EFFECT   OF   ILLEGALITY.  329 

cases  hold  that  the  sale  is  void  if  made  "with  a  view  to"  the  illegal 
purpose. ^''^ 

It  is  also  settled  that  if,  in  addition  to  a  sale  of  goods  which  the  ven- 
dor knows  are  to  be  used  for  an  illegal  purpose,  he  does  some  act  in  aid 
or  furtherance  of  the  unlawful  design,  his  contract  is  void,  and  he  can- 
not recover  the  price.  An  example  of  such  a  case  is  where  a  person 
who  sells  goods  not  only  knows  that  his  vendee  intends  to  smuggle 
them  into  the  country,  but  packs  them  up  or  marks  them  in  a  manner 
convenient  for  the  purpose,  with  a  view  of  their  being  smuggled.^"* 

If  the  vendor  of  goods  knows  that  they  are  to  be  used  for  the  per- 
petration of  a  criiiie  which  is  not  merely  malum  prohibitum  or  of  in- 
ferior criminality,  even  though  he  may  not  expressly  stipulate  that  they 
shall  be  so  used,  and  though  he  does  nothing  further  than  furnishing 
them  to  aid  in  such  use,  the  contract  of  sale js  illegal  and  void,  and  he 

308  Webster  r.  Hunger,  8  Gray  (Mass.)  584;  GRAVES  v.  JOHNSON,  156 
Mass.  211,  30  N.  E.  818,  15  L.  E.  A.  834,  32  Am.  St.  Rep.  446;  Davis  v.  Bron- 
son,  6  Iowa,  410.  "When  a  sale  of  intoxicating  liquors  in  another  state 
has  just  so  much  gi-eater  approximation  to  a  breach  of  the  Massachusetts 
law  as  is  implied  in  the  statement  that  it  is  made  with  a  view  to  such  a 
breach  it  is  void.  Webster  v.  Hunger,  8  Gray,  584;  Orcutt  v.  Nelson,  1  Gray, 
536.  541;  Hubbell  v.  Flint,  13  Gray,  277,  279;  Adams  v.  Coulliard,  102  Mass. 
107,  172,  173.  *  *  *  If  the  sale  would  not  have  been  made  but  for  the 
seller's  desire  to  induce  an  unlawful  sale  in  Maine,  it  would  be  an  unlawful 
sale.  *  *  *  We  assume  that  the  sale  would  have  taken  place  whatever 
the  buyer  had  been  expected  to  do  Avith  the  goods.  *  *  *  The  question 
is  whether  the  sale  is  saved  by  the  fact  that  the  intent  mentioned  was  not 
the  controlling  inducement  to  it.  *  *  '  If  the  sale  is  made  with  the  de- 
sire to  help  him  (the  buyer)  to  his  end,  although  primarily  made  for  money, 
the  seller  cannot  complain  if  the  Illegal  consequence  is  attributed  to  him. 
If  the  buyer  knows  that  the  seller  while  aware  of  his  intent  is  indifferent 
to  it,  or  disapproves  of  it,  it  may  be  doubtful  whether  the  connection  is 
sufficient.  It  appears  to  us  not  unreasonable  to  draw  the  line  as  was  drawn 
In  Webster  v.  Hunger,  8  Gray,  584,  and  to  say  that  when  the  illegal  intent 
of  the  buyer  is  not  only  known  to  the  seller,  but  encouraged  by  the  sale,  as 
just  explained,  the  sale  is  void."  GRAVES  v.  JOHNSON,  supra,  per  Holmes, 
J. 

804  TRACY  V.  TALMAGE,  14  N.  Y.  162,  67  Am.  Dec.  132;  Waymell  v. 
Reed,  5  Term  R.  599;  Gaylord  v.  Soragen,  32  Vt.  110,  76  Am.  Dec.  154;  Arnot 
V.  Coal  Co.,  68  N.  Y.  566,  23  Am.  Rep.  190;  Foster  v.  Thurston,  11  Cush. 
(Mass.)  322;  Skiff  v.  Johnson,  57  N.  H.  475;  Banchor  v.  Hansel,  47  He.  58. 
Concealing  and  disguising  form  of  liquor  sold,  in  order  to  evade  the  law. 
AIKEN  V.  BLAISDELL,  41  Vt.  655.  In  Massachusetts  the  court  has  shown 
an  inclination  to  follow  the  English  rule  on  this  point.  In  Mclntyre  v. 
Parks,  3  Hetc.  (Hass.)  207,  it  was  held  that  the  bare  fact  of  knowledge 
on  the  part  of  the  vendor  of  the  vendee's  unlawful  intent  was  not  enough 
to  avoid  the  sale;  but  this  case,  though  not  overruled,  was  criticised  in 
Webster  v.  Hunger,  8  Gray  (Hass.)  584.  And  see  GRAVES  v.  JOHNSON, 
156  Hass.  211,  30  N.  E.  818,  15  L.  R.  A.  834,  32  Am.  St.  Rep.  446;  Hubbard 
V.  :\loore,  24  La.  Ann.  591,  13  Am.  Rep.  128;  Sampson  v.  Townseud,  25  La. 
Ann.  78;    Fishel  v.  Bennett,  56  Conn.  40,  12  Atl,  102. 


330  LEGALITY   OF  OBJECT.  (Ch.  8 

cannot  recover  the  price.^"^  It  seems  that  it  is  otherwise  where  the 
crime  intended  to  be  perpetrated  is  merely  malum  prohibitum  or  of 
inferior  criminaHty.^°® 

If  the  particular  circumstances  do  not  bring  the  contract  of  sale 
within  any  of  the  cases  mentioned  above,  then,  according  to  the  weight 
of  authority  in  this  country,  the  contract  of  sale  is  not  illegal  merely 
because  the  vendor  knew  that  the  goods  were  intended  to  be  used  for  an 
unlawful  purpose.^"^  "The  law,"  it  is  said  in  a  New  York  case,  "does 
not  punish  a  wrongful  intent  when  nothing  is  done  to  carry  that  intent 
into  efifect ;  much  less  bare  knowledge  of  such  an  intent,  without  any 
participation  in  it.  Upon  the  whole,  I  think  it  clear,  in  reason  as  well  as 
upon  authority,  that  in  a  case  like  this,  where  the  sale  is  not  necessarily 
per  se  a  violation  of  law,  unless  the  unlawful  purpose  enters  into  and 
forms  a  part  of  the  contract  of  sale,  the  vendee  cannot  set  up  his  own 
illegal  intent  in  bar  of  an  action  for  the  purchase  money."  ^°* 

Same — Loan. 

According  to  the  weight  of  authority,  if  a  person  lends  money  to 
another  for  the  express  purpose  of  enabling  the  borrower  to  use  it  to 
accomplish  an  illegal  object,  the  transaction  is  illegal,  and  he  cannot 
recover  it.^°®     It  is  not  easy  to  draw  any  legal  distinction  in  respect  to 

305  HANAUER  y.  DOANE,  12  Wall.  342,  20  L.  Ed.  439;  Tatum  v.  Kelley, 
25  Ark.  209,  94  Am.  Dec.  717;  Lightfoot  v.  Tenant,  1  Bos.  &  P.  556;  Langton 
V.  Hughes,  1  Maule  &  S.  593;  TRACY  v.  TALMAGE,  14  N.  Y.  162,  67  Am. 
Dec.  132;  Howell  v.  Stewart,  54  Mo.  40O;  Russell  v.  Post,  138  U.  S.  425, 
11  Sup.  Ct.  353,  34  L.  Ed.   1009. 

306  HANAUER  v.  DOA^^E,  12  Wall.  342,  20  L.  Ed.  439;  Gaylord  v.  Sor- 
agen,  32  Vt.  110,  76  Am.  Dec.  154;  Hodgson  v.  Temple,  5  Taunt  181;  Howell 
V.    Stewart,   54  Mo.  404. 

307  TRACY  V.  TALMAGE,  14  N.  Y.  162,  67  Am.  Dec.  132;  Hill  v.  Spear, 
50  N.  H.  253,  9  Am.  Rep.  205;  ANHEUSER-BUSCH  BREWING  ASS'N  v. 
MASON,  44  INIinn.  318,  46  N.  W.  558,  9  L.  R.  A.  506,  20  Am.  St.  Rep.  580; 
HANAUER  V.  DOANE,  12  Wall.  342,  20  L.  Ed.  439 ;  Bickel  v.  Sheets,  24  lud. 
1;  Gaylord  v.  Soragen,  32  Vt.  110,  76  Am.  Dec.  154  (but  see  Terrltt  v.  Bart- 
lett,  21  Vt.  184;  McConihe  v.  McMann,  27  Vt  95);  Walker  v.  JeCEries,  45 
Miss.  160;  Webber  v.  Donelly,  33  Mich.  469;  Cheney  v.  Duke,  10  Gill  &  J. 
(Md.)  11;  Michael  v.  Bacon,  49  Mo.  474,  8  Am.  Rep.  138;   Hedges  v.  Wallace, 

2  Bush  (Ky.)  442,  92  Am.  Dec.  497 ;  Ai-mfield  v.  Tate,  29  N.  C.  258 ;  Rose  v. 
Mitchell,  6  Colo.  102,  45  Am.  Rep.  520;  McKinney  v.  Andrews,  41  Tex.  363  (but 
see  Roquemore  v.  Alloway,  33  Tex.  461);  Howell  v.  Stewart,  54  Mo.  400;  Dela- 
vina  V.  Hill,  65  N,  H.  94,  19  Atl.  1000;  Gambs  v.  Sutherland's  Estate.  101 
Mich.  355,  59  N.  W.  652;  Goodall  t.  Bremng  Co.,  56  Ohio  St  257,  46  N.  E. 
983.  He  who  performs  labor  and  furnishes  materials  for  a  bar  and  the  room 
containing  it  may  recover,  though  he  loiew  they  were  intended  to  be  used 
for  unlawful  pm-poses.     Brj'son  v.  Haley,  68  N.  H.  337,  38  Atl.  1006. 

•OS  TRACY  V.  TALMAGE,  14  N.  Y.  162,  67  Am.  Dec.  132. 

800  Cannan  v.  Bryce,  3  Barn.  &  Aid.  179;    McKINNELL  v.   ROBINSON, 

3  Mees.  &  W.  435 ;  TYLER  v.  CARLISLE,  79  Me.  210,  9  Atl.  356,  1  Am.  St  Rep. 
301 ;   White  v.  Buss,  3  Cush.  (Mass.)  448 ;   Ruckman  v.  Bryan,  3  Denio  (N.  Y.) 


§§  179-181)  EFFECT   OF  ILLEGALITY.  331 

I 

the  legality  of  the  transaction  between  a  loan  of  money  to  be  used  for 
an  illegal  purpose  and  a  sale  of  goods  to  be  so  used,  and  probably  there 
is  none.  In  a  leading  case  it  is  said :  "The  plaintiff  claims  to  recover 
a  sum  of  money  loaned  by  him  while  the  defendant  was  engaged  in 
playing-  at  cards.  The  ruling  at  the  trial  was  that  if  the  plaintiff  lent 
the  money  with  an  express  understanding,  intention,  and  purpose  that 
it  was  to  be  used  to  gamble  with,  and  it  was  so  used,  the  debt  so  created 
■cannot  be  recovered,  but  otherwise  if  the  plaintiff  had  merely  knowledge 
that  the  money  was  to  be  so  used.  Upon  authority  and  principle  the 
ruling  was  correct.  *  *  *  j^  order  to  find  the  lender  in  fault,  he 
niust  himself  have  an  intention  that  the  money  shall  T)e  illegally  used. 
There  must  be  a  combination  of  intention  between  lender  and  bor- 
rower,— a  union  of  purposes.  The  lender  must  in  some  manner  be  a 
confederate  or  participator  in  the  borrower's  act, — be  himself  implicated 
in  it.  He  must  loan  his  money  for  the  express  purpose  of  promoting 
the  illegal  design  of  the  borrower ;  not  intend  merely  to  serve  or  accom- 
modate the  man."  ^^° 

Unlazvful  Intention  on  One  Side  Only. 

Where  one  of  the  parties  intends  a  contract,  innocent  in  itself,  to 
further  an  illegal  purpose,  and  the  other  enters  into  the  contract  in 
ignorance  of  his  intention,  the  innocent  party  is  entitled  tQ  full  he^^t.s 
under  the  contract.^^^  In  the\a56  Of  (i6ntracts  ot  sal'e  lor  future  de- 
livery, for  instance,  if  one  o^he  partks-intendo  a  bona  fide  sale,  he 
may  enforce  the  contract,  though  the  other  party  may  have  intended 
no  actual  saleTtrntrrrrerely  an  illegal  speculation  on  future  prices. ^^^ 

346 ;  Peck  v.  Briggs,  Id.  107  ;  Cutler  v.  Welsh,  43  N.  H.  497  ;  Wright  v.  Crabbs, 
78  Ind.  487 ;  Mordecai  v.  Dawkius,  9  Rich.  Law  (S.  C.)  2G2 ;  Williamson  v.  Ba- 
ley,  78  Mo.  636 ;  Euierson  v.  Townsend,  73  Md.  224,  20  Atl.  984 ;  Raymond  v. 
I.eavitt,  46  Mich.  447,  9  N.  W.  525,  41  Am.  Rep.  170;  Critcher  v.  Holloway, 
64  N.  0.  526;  Viser  v.  Bertrand,  14  Ark.  267;  White  v.  Wilson's  Adm'ra 
(Ky.)  38  S.  W.  495.  It  has  been  said,  however,  that  money,  though  loaned 
for  the  purpose  of  being  used  for  gambling  purposes,  may  be  recovered, 
if  it  was  not  in  fact  so  used.     TYLER  v.  CARLISLE,  supra. 

310  TYLER  V.   CARLISLE,   79  Me.  210,   9   Atl.  356,   1   Am.   St.   Rep.  301. 
And  see  Armstrong  v.  Bank,  133  U.  S.  433,  10  Sup.  Ct.  450,  33  L.  Ed.  747 
Plank  V.  Jackson,   128  Ind.  424,  26  N.  E.  568,   27  N.   E.  in7;    Jackson  v 
Bank,  125  Ind.  347,  25  N.  E.  430,  9  L.  R.  A.  657;    Howell  v.  Stewart,  54  Mo 
400;    Lyon  v.  Respass,  1  Litt.   (Ky.)  133;    Lewis  v.  Alexander,  51  Tex.  578 
Waugh  V.  Beck,  114  Pa.  422,  6  Atl.  923,  60  Am.  Rep.  354;    Jones  v.  Bank 
9    Heisk.    (Teun.)   455.     A   loan   of    money,    intended   to   pay   lost    bets,    has 
been  held  to  be  recoverable.     "The  mischief  had  been  completed,"  it  was 
said   in   such   a   case.     "The  illegal    act  had   been    carried    out   before   the 
money   was  lent."     Pyke's  Case,   8   Ch.    Div.    756.     And    see   Armstrong   v. 
Toler,  11  Wheat.  258,  6  L.  Ed.  468;    Armstrong  v.  Bank,  133  U.  S.  433,  10 
Sup.  Ct.  450,  33  L.  Ed.  747. 

siiPIXLEY  V.  BOYNTON,  79  111.  351;  Quirk  v.  Thomas,  6  Mich.  76; 
Scanlon  v.  Warren,  169  111.  142,  48  N.  B.  410. 

312  Williams  v.  Tiedemann,  6  Mo.  App.  269;    PIXLEY  v.  BOYNTON,  79 


332  LEGALITY    OF   OBJECT.  (Ch.  8 

On  the  other  hand,  if  the  contract  is  still  executory,  he  is  not  bound 
to  go  on  with  it,  but  may  avoid  it  at  his  option.^ ^^  Thus  where,  in  an 
action  for  breach  of  an  agreement  by  the  defendant  to  let  to  plaintiff  a 
set  of  rooms,  it  appeared  that  the  plaintiff  intended  to  use  the  rooms 
for  the  purpose  of  delivering  blasphemous  lectures,  which  were  unlaw- 
ful under  a  statute,  though  the  defendant  was  not  aware  of  such  a  pur- 
pose when  the  agreement  was  made,  and  he  afterwards  refused  to  allow 
the  plaintiff  to  use  the  rooms,  it  was  held  that  he  was  entitled  to  avoid 
the  contract.*^* 


SABHQ— PROMISES  TO  PAY  MONEY  DUE  ON  IIXEGAIi 

TRANSACTIONS. 

182.    The  effect  of  a  promise  to  pay  money  due  or  to  become  due  upon 
an.  illegal  transaction  may  be  stated  as  foUoivs: 

(a)  Vriiere   tie  transaction  -was  illegal  in  tlie   strict   sense,   and   not 

merely  void  and  unenforceable,  tbe  promise,  not  being  in  tbe 
form  of  a  negotiable  instriiment,  is  void,  xtrbetber  under  seal  or 
not. 

(b)  Wbere  the  transaction  vras  not  illegal,  but  merely  void  and  unen- 

forceable, a  parol  promise,  not  being  in  tbe  form  of  a  negotiable 
instrument,  is  void  as  xvithout  consideration;  but  a  promise 
under  seal  is  valid. 

(c)  Where  the  promise  is  in  the  form  of  a  negotiable  instrument  the 

above  rules  still  apply  as  betiveen  the  immediate  parties,  and 
as  against  all  persons  who  are  not  bona  fide  purchasers  for 
value.  In  the  hands  of  bona  fide  purchasers  for  value  the  in- 
strument is  valid,  \rhether  the  transaction  ivas  illegal  or  mere- 
ly void,  unless  a  statute  declares  that  the  instrument  shall  be 
void. 

Where  a  promise  has  been  given  to  secure  the  payment  of  money  due 
or  about  to  become  due  upon  an  illegal  transaction,  the  validity  of  such 
a  promise,  as  between  the  immediate  parties,  or  others  occupying  the 
same  position,  is  based  upon  two  considerations :  (i)  Whether  the 
transaction  was  illegal  or  merely  void,  and  (2)  whether  or  not  the 
promise  is  made  under  seal.  Where  the  promise  is  given  in  the  form  of 
a  negotiable  instrument,  a  further  question  arises  as  to  its  value  in  the 
hands  of  third  parties,  but  it  will  prevent  confusion  if  we  treat  of  the 
latter  question  separately. 

There  is  a  distinction,  not  very  easy  to  analyze,  but  of  considerable 
practical  importance,  between  cases  in  which  the  common  law  or  stat- 
in. 351;  Whitesides  v.  Hunt,  97  Ind.  191,  49  Am.  Rep.  441;  Gregory  v. 
Wendell,  39  Mich.  337,  33  Am.  Rep.  390.     Post,  p.  341. 

313  COWAN  V.  MILBOURN,  L.  R.  2  Excli.  230;  CHURCH  ▼.  PROCTOR, 
G6  Fed.  240,  13  C.  C.  A.  426.  And  see  Clay  v.  Yates,  1  Hurl.  &  N.  78.  But 
see  O'Brien  v.  Prioteul)acIi,  1  Hilt.  (X.  Y.)  304. 

314  COWAN   V.    MILBOURN,   L,   R.   2   Exch.   230. 


§  182)  EFFECT   OF    ILLEGALITY.  333 

iites  make  an  object  illegal,  and  cases  in  which  they  make  it  merely  void. 
The  effect  of  the  difference  is  this :  that  in  the  one  case  the  promise  is 
regarded  as  given  upon  an  illegal  consideration,  while  in  the  other  it  is 
regarded  as  given  on  no  consideration  at  all.  In  the  first  case  every- 
thing connected  with  the  transaction  is  "tainted  with  illegality,"-  while 
in  the  second  collateral  contracts  arising  out  of  the  avoided  transaction 
are,  under  certain  circumstances,  supported. 

In  cases  where  the  transaction  is__illegal,  a  promise,  even  under  seal, 
given  to  secure  the  payment  of  money  due  upon  it,  is  void.  In  an  action 
upon  a  covenant  to  pay  money,  in  which  the  defense  was  that  the  cove- 
nant was  security  for  the  payment  of  a  sum  of  money  due  upon  a  pur- 
chase of  land  conveyed  for  a  purpose  prohibited  by  statute,  the  court  of 
exchequer  chamber,  reversing  the  judgment  of  the  queen's  bench,  held 
that  the  illegality,  when  proved,  tainted  the  subsequent  promise,  and 
that  this  was  not  a  simple  promise  to  pay  money,  but  that  it  "springs 
from  and  is  the  creature  of  the  illegal  agreement."  ^^'^  It  will  be  noticed 
that  in  the  case  mentioned  the  promise  was  under  seal,  but  that  made  no 
difference ;  for,  although  want  of  consideration  will  not  defeat  a  sealed 
contract,  the  seal  will  not  prevent  the  contract  from  being  void  if  the 
consideration,  where  there  was  a  consideration,  was  illegal.  The  objec- 
tion on  the  ground  of  illegality  is  "rather  that  of  the  public,  speaking 
through  the  court,  *  *  *  not  from  any  consideration  of  the 
moral  position  and  rights  of  the  parties,  but  upon  grounds  of  public 
pohcy."  ^'^^ 

Where  the  consideration  is  not  illegal,  but  the  transaction  is  merely 
void,  a  promise  given  to  pay  money  due  upon  such  a  transaction  is  based 
upon  no  consideration  at  all.  If  made  under  seal,  it  is  binding,  for  no 
consideration  is  then  necessary ;  but,  if  made  by  parol,  it  is  void. 
Where  a  municipal  corporation,  for  instance,  borrowed  money,  and 
gave  a  mortgage,  which  a  statute  declared  it  unlawful  for  them  to  give 
without  complying  with  certain  conditions  which  they  failed  to  observe, 
it  was  held  that,  though  the  mortgage  was  invalid,  the  corporation  was 
liable  on  its  covenant  therein  to  repay  the  money  it  had  received.^ ^' 
So,  also,  in  case  of  promises  of  payment  made  in  consideration  of  past 
illicit  cohabitation,  the  promises  are  invalid  if  made  by  parol ;  not  on  the 

31B  Fisher  v.  Bridges,  3  El.  &  Bl.  642.  And  see  Everingham  v.  Meighan, 
55  Wis.  354,  13  N.  W.  209;  Claflin  v.  Torlina,  50  Mo.  3G9;  Howe  v.  Litclifleld, 
3  Allen  (ilass.)  443;  Btanton  v.  Allen.  5  Denio  (N.  Y.)  435,  49  Am.  Dec.  2S2; 
Holden  v.  Cosgrove,  12  Gray  (INLass.)  21G;  Hall  v.  Gavitt,  18  Ind.  300;  Cross- 
ley  V.  Moore,  40  N.  J.  Law,  27;  Chancely  v.  Bailey,  37  Ga.  532,  95  Am.  Dec. 
350;    Coulter  v.  Robertson,  14  Smedes  &  M.   (Miss.)  18. 

"i6L5'on  V.  Waldo,  30  Mich.  315,  353.  See  Parks  v.  McKamy,  3  Head 
(Tenn.)  207;  Wooden  v.  Sliotwcll,  23  N.  J.  Law,  405;  Buffendoau  v.  Brooks, 
28  Cal.  041;  Seidenbender  v.  Charles'  Adm'rs,  4  Serg.  &  R.  (Pa.)  151,  8  Am. 
Dec.  062. 

317  Payne  v.  Maj-or  of  Brecon,  3  Hurl.  &  N.  579. 


334  LEGALITY   OF   OBJECT.  (Ch.  8- 

ground  that  the  consideration  is  illegal,  but  because  there  is  in  fact  no 
consideration  at  all.^^*^  A  bond  given  upon  such  a  past  consideration, 
because  of  the  seal,  would  be  binding.^^"* 

It  is  often  a  difficult  question  to  determine  whether  a  given  contract 
is  illegal  or  merely  void,  and  there  is  much  direct  conflict  in  the  de- 
cisions. Of  course  there  can  be  no  question  but  that  it  is  illegal  where 
it  involves  the  commission  of  a  crime  which  is  raalumjn_  _se,  or,  it 
seems,  where  it  tends  to  the  pi-pjndirp  of  the  pithHcj  and  is  void  be- 
cause againsi43ubli€--policy ;  ^^^  but  it  is  not  so  easy  to  declare  a  trans- 
action illegal  in  the  strict  sense,  where  it  is  only  unlawful  because  pro- 
hibited by  statute.  In  an  English  case  it  was  held  that  a  note  given  to 
secure  the  payment  of  money  under  a  wagering  contract  did  not  take 
its  inception  in  illegality  within  the  meaning  of  the  rule  we  have  been 
discussing.  "There  is  no  penalty  attached  to  such  a  wager,"  it  was 
said.  "It  is  not  in  violation  of  any  statute,  nor  of  the  common  law, 
but  is  simply  void ;  so  that  the  consideration  was  not  an  illegal  con- 
sideration, but  equivalent  in  law  to  no  consideration  at  all."  ^^^  In 
those  of  our  states  where  wagers  are  held  contrary  to  public  policy, 
even  where  there  is  no  statute  prohibiting  them,  the  ruling  on  this 
point  would  be  different.^^^ 

Negotiable  Instruments. 

In  the  case  of  negotiable  instruments  we  have  to  consider  not  only 
the  effect  of  the  illegality  as  between  the  original  parties,  but  the  ef- 
fect upon  subsequent  holders  of  the  instrument.  A  negotiable  instru- 
ment given  upon  an  illegal  transaction  is  like  any  other  simple  contract 
as  between  the  immediate  parties,  and  cannot  be  enforced  unless  it 
has  passed  into  the  hands  of  a  bona  fide  purchaser  for  value. ^-^ 
Whether  it  can  be  enforced  in  the  latter  event  will  depend  on  the  cir- 
cumstances. The  position  of  such  a  purchaser  may  be  shortly  stated 
as  follows : 

(i)  If  the  transaction  in  which  the  instrument  was  given  was  not 
illegal,  but  merely  void,  so  that  the  instrument  is  based,  not  on  an  il- 
legal consideration,  but  on  no  consideration  at  all,  it  may  be  enforced 
by  one  who  purchased  the  same  for  value  before  maturity,  and  with- 

818  BEAUMONT  v.  REEVE,  8  Q.  B.  483. 

sioAyerst  v.  Jeukins,  L.  R.  16  Eq.  275. 

320  BISHOP  V.  PALMER,  14G  Mass.  469,  16  N.  E.  299,  4  Am.  St.  Rep. 
339;  HARVEY  v.  MERRILL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15 
Am.  St.  Rep.  159. 

a2i  Fitch  V.  Joues,  5  El.  &  Bl.  245.  See,  also,  TH ACKER  v.  HARDY, 
4  Q.  B.  Div.  685. 

822  Embrey  v.  Jeraison,  131  U.  S.  336,  9  Sup.  Ct.  776,  33  L.  Ed.  172;  HARVEY 
V.  ^n<:RRlLL,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St.  Rep.  159; 
MOHR  V.  MIESEN,  47  Minn.  228,  49  N.  W.  862;    ante,  p.  279. 

S23  Embrey  v.  Jemison,  131  U.  S.  336,  9  Sup.  Ct.  776,  33  L.  Ed.  172. 


§  182)  EFFECT    OF   ILLEGALITY.  335 

out  notice  of  the  want  of  consideration.  In  such  a  case  it  is  to  be  pre- 
sumed, prima  facie,  that  the  holder  paid  value,  and  had  no  notice  of 
want  of  consideration.^^* 

(2)  If  the  transaction  in  wliich  the  instrument  was  given  was  illegal, 
unless  the  illegality  is  by  force  of  a  statute  which  renders  the  instru- 
ment absolutely  void,  a  bona  fide  holder  for  value  may  enforce  it.  "If 
the  legislature  has  declared  that  the  illegality  of  the  contract  or  con- 
sideration shall  make  the  note  void,  the  defendant  may  set  up  that 
defense,  though  the  note  be  in  the  hands  of  a  bona  fide  holder;  ^^'^ 
but  unless  it  has  been  so  expressly  declared  by  the  legislature,  illegal- 
ity of  consideration  will  be  no  defense  against  a  bona  fide  holder, 
without  notice,  and  for  sufficient  consideration,  unless  he  obtained  the 
note  after  it  became  due."  ^-®  In  such  a  case,  however,  the  ordinar>' 
presumption  in  favor  of  the  holder  does  not  exist.  Upon  proof  of 
the  illegality  which  tainted  the  instrument  in  its  inception,  the  holder 
must  show  that  he  paid  value  for  the  instrument;  and  even  then,  if 
it  is  shown  that  he  knew  of  the  illegality,  he  cannot  recover.*^^  Most 
courts  even  hold  that  the  burden  is  on  the  holder  to  show  that  he  had 
no  notice  of  the  illegality.^ ^^ 

824  Norton,  Bills  &  N.  (3d  Ed.)  327,  332;  Mechanics'  &  Traders'  Nat  Bank 
V.  Crow,  60  N.  Y.  85;  Harger  v.  Worrall,  69  N.  Y.  370,  25  Am.  Rep.  206; 
Little  V.   Mills,  98  Mich.  423,  57  N.  W.  266. 

32  5  City  of  Aurora  v.  West,  22  Ind.  88,  So  Am.  Dec.  413;  Laffonda  Nat. 
Bank  v. 'Portner,  46  Ohio  St.  381,  21  N.  E.  634;  Meadow  v.  Bird,  22  Ga. 
246;  Unger  v.  Boas,  13  Pa.  001;  Snoddy  t.  Bank,  88  Term.  573,  13  S.  W. 
127,  7  L.  R.  A.  705,  17  Am.  St.   Rep.  918;    Harper  v.  Young,  112  Pa.  419, 

3  Atl.  670;  Emerson  v.  Townsend,  73  Md.  224,  20  Atl.  984;  Lucas  v.  Waul, 
12  Smcdes  &  M.  (Miss.)  157;  Faris  v.  King,  1  Stew.  (Ala.)  255;  Traders' 
Bank  v.  Alsop,  64  Iowa,  97,  19  N.  W.  8(!o. 

326  Vallett  V.  Parker,  6  Wend.  (N.  Y.)  615;  Town  of  Eagle  v.  Kohn,  84 
111.  292;  Sondheim  v.  Gilbert,  117  Ind.  71,  18  N.  E.  687,  5  L.  R.  A.  432,  10 
Am.  St  Rep.  23;  Glenn  v.  Bank,  70  N.  C.  191;  Fuller  v.  Green,  64  Wis. 
159,  24  N.  W.  907,  54  Am.  Rep.  600;  Bayley  v.  Taber,  5  Mass.  286,  4  Am.  Dec. 
57;    Root  V.  Merriam  (C.  C.)  27  Fed.  909;    Crawford  v.  Spencer,  92  Mo.  498, 

4  S.  W.  713,  1  Am.  St  Rep.  745;  Shaw  v.  Clark,  49  Mich.  384,  13  N.  W. 
786,  43  Am.  Rep.  474;  Thome  v.  Yontz.  4  Cal.  321;  Meadow  v.  Bird,  22  Ga. 
246;  Johnston  v.  Dickson,  1  Blackf.  (Ind.)  256;  Rockwell  v.  Charles,  2  Hill 
(N.  Y.)  499;  Knox  v.  White,  20  La.  Ann.  326.  But  see  Cunningham  v. 
Bank,  71  Ga.  400,  51  Am.  Rep.  266. 

327  Note  325,  supra. 

328  Norton,  Bills  &  N.  (3d  Ed.)  333;  Canajoharie  Nat  Bank  v.  Diefendorf, 
123  N.  Y.  191,  25  N.  E.  402,  10  L.  R.  A.  676;  Vosburgh  v.  Diefendorf,  119 
N.  Y.  357,  23  N.  E.  801,  16  Am.  St.  Rep.  836;  McDonald  v.  Aufdengarten. 
41  Neb.  40,  59  N.  W.  762;  State  Nat  Bank  v.  Bennett  8  Ind.  App.  679,  36 
N.  B.  551. 


336  LEGALITY   OF   OBJECT.  (Ch.  8 


SAME— RELIEF  OF  PARTY  TO  UNLAWFUL  AGREEMENT. 

I  S3.    In   no  case    can   an   action   be    maintained   to    enforce    an    illegal 
agreement. 

184.  WTiere  an  agreement  has  been  executed  in  T^hole  or  in  part  by 

the  payment  of  money  or  the  transfer  of  other  property,  the 
coiirt  will  not  generally  lend  its  aid  to  recover  it  back.  The 
rnle  is  that  the  court  will  not  lend  its  aid  to  a  party  w^ho,  as 
the  ground  of  his  claim,  must  disclose  an  illegal  transaction. 
This  rule  is  subject  to  exceptions  as  follow^s,  w^here  the  action 
is  brought,  not  to  enforce  the  agreement,  but  in  disaffirmance 

EXCEPTIONS—  (a)  In  some  cases  a  locus  poenitentise  remains,  and, 
while  the  agreement  is  unperformed,  money  or  goods  delivered 
in  furtherance  of  it  are  allow^ed  to  be  recovered. 

(b)  'Where  the  parties  are  not  in  pari  delicto,  the  on©  w^ho  is  less 
guilty  may  recover  w^hat  he  has  parted  with,  as 

(1)  Where  the  party  asking  relief  w^as  induced  to  enter  into  the 

agreement  under  the  influence  of  fraud  or  strong  pressure. 

(2)  Where    the    laiv   \Fhich    makes   the   agreement   unlaw^ful   w^as 

intended  for  the  protection  of  the  party  asking  relief. 

185.  A  broker,  or  other  agent,  employed  to  carry  out  an  illegal  trans- 

action, cannot  recover  compensation,  reimbursement,  or  indem- 
nity in  respect  to  the  transaction,  if  he  w^as  privy  to  the  princi- 
pal's unlawful  purxiose. 


r  - 


It  is  a  well-settled  rule  that  in  no  case  will  the  court  lend  its  aid  to 
the  enforcement  of  an  illegal  agreement.  Further  than  this,  if  the 
agreement  has  been  executed,  in  whole  or  in  part,  by  the  payment  of 
money  or  transfer  of  property,  the  court  will  not,  as  a  rule,  entertain 
an  action  to  recover  it  back.  The  rule  is  necessary  on  the  ground  of 
public  policy.  "The  objection,"  said  Lord  Mansfield  in  a  leading  case, 
"that  a  contract  is  immoral  or  illegal,  as  between  plaintiff  and  defend- 
ant, sounds  at  all  times  very  ill  in  the  mouth  of  the  defendant.  It  is 
not  for  his  sake,  however,  that  the  objection  is  ever  allowed,  but  it  is 
-^y  !_/''founded  in  general  principles  of  policy,  which  the  defendant  has  the 
advantage  of,  contrary  to  the  real  justice  as  between  him  and  the 
plaintiff;  by  accident,  if  I  may  so  say.  The  principle  of  public  policy 
is  this :  'Ex  dolo  malo  non  oritur  actio.'  No  court  will  lend  its  aid 
to  a  man  who  founds  his  cause  of  action  upon  an  immoral  or  an  illegal 
act.  If,  from  the  plaintiff's  own  stating  or  otherwise,  the  cause  of 
action  appears  to  arise  ex  turpi  causa,  or  the  transgression  of  a  posi- 
tive law  of  this  country,  there  the  court  says  he  has  no  right  to  be  as- 
sisted. It  is  upon  that  ground  the  court  goes ;  not  for  the  sake  of  the 
defendant,  but  because  they  will  not  lend  their  aid  to  such  a  plaintiff. 
So,  if  the  plaintiff  and  defendant  were  to  change  sides,  and  the  de- 
fendant was  to  bring  his  action  against  the  plaintiff,  the  latter  would 


§§  183-185)  EFFECT   OF   ILLEGALITY.  337 

then  have  the  advantage  of  it;  for  where  both  are  equally  In  fault, 
'potior  est  conditio  defendentis.'  "  ^^^  ";  ,^    &t    r'    "" 

As  we  have  said,  therefore,  a  party  to  an  illegal  agreement  cannot,  ,  ^r 
under  any  circumstances,  come  into  a  court  of  law  or  equity  and  ask  "VtM*^ 
to  have  his  illegal  objects  carried  out;  nor,  as  a  rule,  can  he  ask  the 
court  to  relieve  him  from  the  effect  of  his  agreement.  He  cannot  set 
up  a  case  in  which  he  must  necessarily  disclose  an  illegal  purpose  as 
the  groundwork  of  his  claim. ^^"^  This  rule  is  expressed  in  the  maxim, 
'ln_j)aT[jlelictpjpotior  est  conditio  defendentis;"  tliat  is  to  say,  where 

329  HOLMAN  V.  JOHNSON,  1  Cowp.  341.  See,  also,  FROST  v.  GAGE, 
3  Allen  (Mass.)  5G0;  Shenk  v.  Phelps,  6  111.  App.  (512;  Jameson  v.  Carpeuter, 
08  N.  H.  (j2,  30  Atl.  554;  Winchester  Electric  Light  Co.  v.  Veal,  145  Ind. 
500,  41  N.  E.  334;  Crichfield  v.  Paving  Co.,  174  111.  400,  51  N.  E.  552,  42 
L.  R.  A.  347. 

330  Begbie  v.  Sewage  Co.,  L.  R.  10  Q.  B.  400;  BARCLAY  t.  PEARSON 
[1803]  2  Ch.  154;    SCOIT?  v.  BROWN  [1802]  2  Q.  B.  12A;    FROST  v.  GAGE, 

3  Allen  (Mass.)  500;  EMERY  v.  CANDLE  CO.,  47  Ohio  St.  320,  24  N.  E. 
000,  21  Am.  St.  Rep.  810;  Hill  v.  Freeman,  73  Ala.  200,  49  Am.  Rep.  48; 
Haynea  v.  Rudd,  102  N.  Y.  372,  7  N.  E.  287,  55  Am.  Rep.  815;  Gotwalt  v. 
Neal,  25  Md.  434;  Roman  v.  Mali,  42  Md.  513;  Bartle  v.  Coleman,  4  Pet. 
184.  7  L.  Ed.  825;  Miller  v.  Marckle,  21  111.  152;  Myers  v.  Meinrath,  101 
Mass.  300,  3  Am.  Rep.  308;  St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Railroad  Co., 
145  U.  S.  393,  12  Sup.  Ct.  953,  30  L.  Ed.  748;  Singer  Mfg.  Co.  v.  Draper, 
103  Tenn.  202,  52  S.  W.  879;  Minzesheimer  v.  Doolittle,  00  N.  J.  Eq.  394, 
45  Atl.  Oil.  Where  persons  are  engaged  in  an  unlawful  transaction,  the 
court  will  not  entertain  a  suit  for  an  accomiting  in  respect  to  the  profits 
thereof.  Jackson  v.  McLean  (C.  C.)  30  Fed.  213;  McMullen  v.  Hoffman, 
174  U.  S.  039.  19  Sup.  Ct.  839,  43  L.  Ed.  1117;  Craft  v.  McConoughy.  79  lU. 
340,  22  Am.  Rep.  171;  Morrison  v.  Bennett,  20  Mont.  500,  52  Pac.  553,  40  L. 
R.  A.  158;  AtAvater  v.  Manville,  100  Wis.  04,  81  N.  W.  985.  But  if  money 
has  been  actually  paid  to  an  agent  for  the  use  of  his  principal,  the  legality 
of  the  transaction  of  which  it  was  the  fruit  does  not  affect  the  right  of  the 
principal  to  recover  it  out  of  the  agent's  hands,  on  the  ground  that,  though 
the  law  would  not  have  assisted  the  principal  by  enforcing  the  recovery  of  it 
from  the  party  by  whom  it  was  paid,  yet,  when  that  contract  is  at  an  end, 
the  agent,  whose  liability  arises  solely  from  having  received  the  money 
for  another's  use,  can  have  no  right  to  retain  it.  Tenant  v.  Elliott,  1  Bos. 
&  P.  3;  Farmer  v.  Russell,  Id.  295;  McBlair  v.  Gibbes,  17  How.  230,  15 
L.  Ed.  332;  Brady  v.  Horvath,  107  111.  010,  47  N.  E.  757;  Hertzler  v.  Geigley, 
190  Pa.  419,  40  Atl.  300,  79  Am.  St.  Rep.  724;    Hardy  v.  Jones.  03  Kan.  8, 

04  Pac.  909,  88  Am.  St.  Rep.  223.  In  Brooks  v.  Martin,  2  Wall.  70,  17  L.  Ed. 
732,  among  other  cases,  the  principle  was  applied  so  as  to  allow  one  member 
of  a  firm  formed  for  the  purpose  of  illegal  transactions  to  recover  from  the 
other  member  his  share  of  the  profits.  See,  also,  in  support  of  this  doctrine. 
State  v.  Railro.id  Co.,  34  Md.  344.  at  page  305;  Bonsfield  v.  Wilson,  10  Mees. 
&  W.  185;  Haacke  v.  Knights  of  Liberty,  70  Md.  429,  25  Atl.  422;  Daniels 
V.  Barney,  22  Ind.  207;  Peters  v.  Grim,  149  Pa.  103,  24  Atl.  192.  34  Am. 
St.  Rep.  599;  Portsmouth  Brewing  Co.  v.  Modge,  08  N.  II.  402,  44  Atl.  000; 
McDonald  v.  Lund,  13  Wash.  412,  43  Pac.  348;  Andrews  v.  Association,  74 
Miss.  302,  20  South.  837,  GO  Am.  St.  Rep.  509.  There  is  certainly  little  reason 
in  the  distinction.     One  sued  on  an  implied  contract  for  services  rendered 

Clark  Cont.  (2d  Ed.)— 22 


338  LEGALITY  OF  OBJECT.  (Ch.  8  j 

the  parties  are  equally  in  fault  tlie  condition  of  the  defendant  is  the         | 
better.     The  law,  in  such  a  case,  will  leave  the  parties  where  it  finds 
them.'^^ 

There  are  some  exceptional  cases,  however,  as  stated  in  the  black-  j 

letter  text,  in  which  a  man  may  be  relieved  from  an  illegal  agreement.  I 

Locus  PoenitenticB.  * 

Although  there  is  some  difference  of  opinion  on  the  subject,  it  is 
safe  to  say  that  in  some  cases  of  illegal  agreements,  at  least  if  they  are 
pot  mala  in  se,  but  merely  mala  prohibita,  a  locus  poenitentiae  remains, 
andT:hat,  while  the  illegal  object  has  not  been  carried  out  by  perform- 
ance of  the  agreenient,  money  paid  or  goods  delivered  under  it  may  be 
recovered. ^^^  "It  best  comports  with  public  policy  to  arrest  the  illegal 
proceeding  before  it  is  consummated."  ^^^  In  a  leading  English  case 
on  this  point  the  plaintiff  had  made  a  fictitious  assignment  of  goods 
to  a  third  party,  to  defraud  his  creditors,  and  the  defendant,  with  a 
knowledge  of  the  circumstances,  had  taken  a  bill  of  sale  of  the  goods 
from  the  assignee,  and  afterwards,  though  the  plaintiff  demanded 
them  back,  liad  caused  them  to  be  put  up  at  auction  and  sold.  Noth- 
ing further  had  been  done  in  respect  of  the  fraud  contemplated  against 
the  creditors,  and  the  plaintiff  was  allowed  to  recover,  on  the  ground 
that,  as  the  illegal  purpose  was  not  carried  out,  there  was  a  locus  poeni- 
tentiae. "If  money  is  paid,"  it  was  said  in  that  case,  "or  goods  de- 
livered, for  an  illegal  purpose,  the  person  who  has  so  paid  the  money  or 
delivered  the  goods  may  recover  them  back  before  the  illegal  purpose^ 
is  carried  out;  but  if  he  waits  until  the  illegal  purpose  is  carried  out, 
or  if  he  seeks  to  enforce  the  illegal  transaction,  in  neither  case  can  he 
maintain  an  action."  ^^* 

So,  also,  in  a  case  where  persons  had  each  deposited  money  with 


may  under  a  general  denial  show  an  express  contract,  and  It  is  immaterial 
that  sncb  express  contract  was  unlawful.  STEWAllT  v.  THAYER,  170 
Mass.  5G0,  49  N.   E.  1020. 

"31  Howson  V.  Hancock,  8  Tenn  R.  575;  Perkins  v.  Savage,  15  Wend.  (N. 
Y.)  412;    Buit  V.  Place,  6  Cow.  (N.  Y.)  431. 

332  TYLER  V.  CARLISLE,  79  Me.  210,  9  Atl.  35G,  1  Am.  St.  Rep.  301; 
BARCLAY  V.  PEARSON  [1893]  2  Ch.  154;  Clarke  v.  Brown,  77  Ga.  GOO, 
4  Am.  St.  Rep.  98;  Peters  v.  Grim,  149  Pa.  1G3,  24  Atl.  192,  34  Am.  St.  Rep. 
599;  Skinner  v.  Henderson,  10  Mo.  205;  Adams  Exp.  Co.  v.  Reno,  48  Mo. 
2G4;  Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24;  Wassermaun  v.  Sloss, 
117  Cal.  425,  49  Pac.  5GG,  38  L.  R.  A.  17G,  59  Am.  St.  Rep.  209;  Stansfield 
V.  Kunz,  G2  Kan.  797,  G4  Pac.  G14.  But  see  Knowlton  v.  Spring  Co.,  57  N. 
Y.  518. 

333  Stacy  V.  I'oss,  19  Me.  335,  36  Am.  Dec.  755. 

33*  Taylor  v.  Bowers,  1  Q.  B.  Div.  291.  See,  also.  Spring  Co.  v.  Knowlton, 
103  U.  S.  49,  26  L.  Ed.  347;  Gowan's  Adin'r  v.  Gowan,  30  Mo.  472.  The  prin- 
ciple of  Taylor  v.  Bowers,  supra,  as  w^ell  as  its  application,  was  questioned  in 
Kearley  v.  Thomson,  24  Q.  B.  Div.  742,  746. 


§§  183    185)  EFFECT   OF   ILLEGALITY.  339 

another  on  a  wager,  and  one  of  them,  after  a  decision  of  the  wager 
against  him,  but  before  the  money  was  paid  over,  demanded  it  back, 
he  was  allowed  to  recover.^ ^"^ 

On  the  other  hand,  if  the  illegal  object  has  been  effected  by  the  mere 
deposit  of  the  money  or  goods,  they  cannot  be  recovered.  And  it 
seems  that,  if  the  illegal  contract  has  been  performed  in  part,  there 
can  be  no  recovery.^^"  In  an  English  case  the  defendant  had  agreed 
with  the  plaintiff  to  go  bail  for  him  for  a  specified  time  if  the  plaintiff 
would  deposit  with  him  the  amount  of  the  bail  as  an  indemnity  against 
his  (plaintiff's)  possible  default,  the  defendant  undertaking  to  return 
the  money  at  the  expiration  of  the  specified  time.  Before  the  time 
had  expired,  the  plaintiff  sued  for  the  money,  on  the  ground  that  the 
agreement  was  illegal,  and  that  he  was  entitled  to  rescind  it.  It  was 
held  that  the  illegal  purpose  was  effected  when  the  public  lost  "the  pro- 
tection which  the  law  affords  for  securing  the  good  behavior  of  the 
plaintiff;"  for,  as  it  was  said,  "when  a  man  is  ordered  to  find  bail,  and 
a  surety  becomes  responsible  for  him,  the  surety  is  bound,  at  his  peril, 
to  see  that  his  principal  obeys  the  order  of  the  court.  *  *  *  But 
if  money  to  the  amount  for  which  the  surety  is  bound  is  deposited  with 
him  as  an  indemnity  against  any  loss  which  he  may  sustain  by  reason 
of  his  principal's  conduct,  the  surety  has  no  interest  in  taking  care  that 
the  condition  of  the  recognizance  is  performed."  ^^'' 

So,  also,  where  a  person  placed  money  to  the  credit  of  a  corpora- 
tion to  give  it  a  fictitious  credit  in  case  of  inquiries,  the  money  to  be 
returned  to  him  at  a  specified  time,  and  he  sued  to  recover  the  same 

836  HAMPDEN  V.  WALSH,  1  Q.  B.  Div.  189.  And  see  Fisher  v.  Hildretb,. 
117  Mass.  558;  BERNARD  v.  TAYLOR,  23  Or.  416,  31  Pac.  9G8,  18  L.  R.  A. 
859,  37  Am.  St.  Rep.  G93;  Lewis  v.  Bruton,  74  Ala.  317,  49  Am.  Rep.  816; 
Weaver  v.  Harlan,  48  Mo.  App.  319;  McDonough  v.  Webster,  68  Me.  530; 
McAllister  v.  Hoffman,  16  Serg.  &  R.  (Pa.)  147,  16  Am.  Dec.  556;  TYLER 
V.  CARLISLE,  79  Me.  210,  9  Atl.  356,  1  Am.  St.  Rep.  301;  Stacy  v.  Foss, 
19  Me.  335,  36  Am.  Dec.  755;  Wheeler  v.  Spencer,  15  Conn.  28;  House  v. 
McKenuey,  46  Me.  94;  Shannon  v.  Baumer,  10  Iowa,  210;  Hodson  v.  Terrill, 
1  Cromp.  &  M.  797;  Hastelow  v.  Jackson,  8  Bam.  &  C.  221;  Martin  v. 
Hewson,  10  Exch.  737;  Strachan  v.  Stock  Exchange  [1895]  2  Q.  B.  329; 
Pabst  Brewing  Oo.  v.  Listen,  80  Minn.  473,  83  N.  W.  448,  81  Am.  St.  Rep. 
275.  In  many  states  by  statute  persons  who  have  lost  money  by  gambling 
may,  under  certain  circumstances,  recover  it  back.  In  some  states  by  statute 
any  money  betted  or  staked  is  forfeit.  Ferguson  v.  Yunt,  13  S.  D.  120,  82 
N.  W.  509.  In  some  by  statute  a  stakeholder  on  notice  must  retui-n  it. 
Turner  v.  Thompson,  107  Ivy.  647,  55  S.  W.  210. 

336  Keasley  v.  Thomson,  24  Q.  B.  Div.  742;  Ullman  v.  Association,  167 
Mo.  273,  66  S.  W.  949,  56  L.  R.  A.  606;    Anson,  Cont.  (Sth  Ed.)  219. 

33  7  Herman  v.  .lenchner,  15  Q.  B.  Div.  561,  overruling  Wilson  v.  Stnignell. 
7  Q.  B.  Div.  548.  Otherwise  where  an  agreement  to  indemnify  the  signer 
of  a  bail  bond  against  loss  is  not  against  public  policy.  MALONEY  v.  NEL- 
SON, 12  App.  Div.  545,  42  N.  Y.  Supp.  418;  MOLONEY  v.  SAME,  158  N. 
Y.  351,  53  N.  E.  31. 


340  LEGALITY   OF   OBJECT.  (Ch.  8 

after  the  company  had  gone  into  liquidation,  he  was  not  allowed  to 
recover,  because  "the  object  for  which  the  advance  was  made  was 
attained  as  the  company  continued  to  have  a  fictitious  credit  till  the 
commencement  of  the  winding-up."  ^^^ 

Par  Delictum. 

If  the  party  asking  to  be  relieved  from  the  effect  of  an  illegal  agree- 
ment was  induced  to  enter  into  the  agreement  by  means  of  fraud,  he 
is  not  always  regarded  as  being  in  pari  delicto  with  the  other  party, 
and  the  court  may  relieve  him.  As  illustrating  this  rule  is  a  case  in 
which  a  party  sued  in  equity  to  set  aside  a  conveyance  made  in  pur- 
suance of  an  agreement  which  was  illegal  on  the  ground  of  champerty. 
It  was  urged  that  the  parties  were  in  pari  delicto,  but  the  court,  being 
satisfied  that  the  plaintiff  had  been  induced  to  enter  into  the  agreement 
by  the  fraud  of  the  defendant,  held  that  he  was  entitled  to  relief. 
"Where  the  parties,"  it  was  said,  "to  a  contract  against  public  policy, 
or  illegal,  are  not  in  pari  delicto  (and  they  are  not  always  so),  and 
where  public  policy  is  considered  as  advanced  by  allowing  either,  or  at 
least  the  more  excusable  of  the  two,  to  sue  for  relief  against  the  trans- 
action, relief  is  given  to  him."  ^'* 

So,  where  the  party  asking  relief  was  induced  to  enter  into  the  agree- 
ment under  the  influence  of  duress,  strong  pressure,  or  undue  in- 
fluence.^*" "This  is  not  a  case  of  par  delictum,"  it  was  said  by  an 
English  judge  in  reference  to  a  case  of  duress.  "It  is  oppression  on 
one  side  and  submission  on  the  other.  It  never  can  be  predicated  as 
par  delictum,  when  one  holds  the  rod  and  the  other  bows  to  it."  ^*^ 
In  a  case,  for  instance,  where  a  debtor  sued  to  recover  an  additional 

S38  In  re  Great  Britain  Steamboat  Co.,  26  Ch.  Div.  616. 

339  Reynell  v.  SpiTe,  1  De  Gex,  M.  &  G.  660.  See,  also,  Ford  v.  Har- 
rin,^on,  16  N.  Y  2S5;  Roman  v.  ISIali,  42  Md.  513;  Green  v.  Corrigan.  87 
Mo.  359;  Davidsun  v.  Carter,  55  Iowa,  117,  7  N.  W.  4G6;  Barnes  v.  Brown, 
32  Micli.  146;  Belding  v.  Smythe,  138  Mass.  530.  So  in  New  York  it  was  held 
that  money  paid  to  a  marriage  broker  may  be  recovered  by  the  party  who 
paid  it,  as  obtained  by  constructive  fraud;  and  that  she  will  not  be  regarded 
as  in  pari  deUcto  with  him.  DUVAL  v.  WELLINIAN,  124  N.  Y.  156,  26  N.  E. 
343. 

3  40  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660;  Baehr  v.  Wolf,  59  111.  470; 
Richardson  v.  Craudall,  48  N.  Y.  348;  TRACY  v.  TALMAGE,  14  N.  Y.  162, 
67  Am.  Dec.  132;  Green  v.  Corrigan,  87  Mo.  359;  Roman  v.  Mali,  42  Md. 
513;  Curtis  v.  Leavitt,  15  N.  Y.  9;  Mount  v.  Waite,  7  Johns.  (N.  Y.)  434; 
WIIIT-E  V.  BANK,  22  Pick.  (Mass.)  181;  Bell  v.  Campbell,  123  Mo.  1,  25 
S.  W.  359,  45  Am.  St.  Rep.  505;  Woodham  v.  Alien,  130  Cal.  194,  62  Pac. 
398;  Gon-inge  v.  Reed,  23  Utah,  120.  63  Pac.  902.  90  Am.  St.  Rep.  602. 
Though  a  mortgage  given  by  a  father  to  prevent  the  prosecution  of  his  son 
for  a  crime  is  illegal,  he  may  sue  to  set  it  aside.  Having  executed  it  under 
strong  pressure,  he  is  not  in  pari  delicto  with  the  mortgagee.  Foley  v. 
Greene,  14  R.  I.  618,  51  Am.  Rep.  419. 

841  SMITH  V.  CUFF,  6  Maule  &  S.  160,  at  page  165. 


§§  183-185)  EFFECT    OF   ILLEGALITY.  341 

sum,  paid  by  him  to  one  of  his  creditors,  in  fraud  of  the  others,  to  in- 
duce the  former  to  agree  to  a  composition,  he  was  allowed  to  recover, 
it  being  shown  that  the  decision  of  several  other  creditors  depended 
on  the  defendant's  acceptance  or  rejection  of  the  offer  of  a  composi- 
tion. "It  is  said  that  the  parties  are  in  pari  delicto,"  said  the  court. 
"It  is  true  that  both  are  in  delicto,  because  the  act  is  a  fraud  upon  the 
other  creditors;  but  it  is  not  par  delictum,  because  the  one  has  power 
to  dictate,  the  other  no  alternative  but  to  submit."  ^*^ 

The  parties  are  not  to  be  regarded  as  being  in  pari  delicto  where  the 
agreement  is  merely  malum  prohibitum,  and  the  law  which  makes  it  il- 
legal was  intended  for  the  protection  of  the  party  asking  relief.^*^  As 
illustrating  this  rule  are  cases  in  which  banks  or  otlier  corporations  are 
prohibited  under  penalties  from  issuing  bills  or  other  securities,  but  no 
penalty  is  imposed  on  persons  who  receive  the  illegal  securities.  In  such 
cases  it  is  held  that  the  law  creating  the  illegality  is  to  protect  the  pub- 
lic against  the  prohibited  securities,  that  the  corporation  issuing  them 
is  the  only  offender,  and  that  persons  who  receive  them  may  recover 
the  money  paid  for  them.  They  are  not  in  pari  delicto.  "The  cor- 
poration issuing  the  bills  contrary  to  law  and  against  penal  sanctions 
is  deemed  more  guilty  than  the  members  of  the  community  who  re- 
ceive them,  whenever  the  receiving  of  them  is  not  expressly  prohibited. 
The  latter  are  regarded  as  the  persons  intended  to  be  protected  by  the 
law ;  and,  if  they  have  not  themselves  violated  an  express  law  in  re- 
ceiving the  bills,  the  principles  of  justice  require  that  they  should  be 
able  to  recover  the  money  received  by  the  bank  for  them."  ^** 

If  a  broker  or  other  agent  is  employed  to  carry  out  an  illegal  trans- 

84  2  Atkinson  v.  Denby,  6  Hurl.  &  N.  778,  7  Hurl.  &  N.  934.  And  see 
Solinger  v.  Earle,  82  N.  Y.  393;  Crossley  v.  Moore,  40  N.  J.  Law,  27;  Brown 
V.  Everett-Ridley-Ragan  Co.,  Ill  Ga.  404,  30  S.  E.  813. 

343  lu  Bowditch  V.  Insurance  Co.,  141  Mass.  292,  4  N.  E.  798,  55  Am. 
Rep.  474,  It  was  held  that  a  statute  providing  that  "no  member  of  a  com- 
mittee or  officer  of  a  domestic  insurance  company,  who  is  charged  with  the 
duty  of  investing  its  funds,  shall  borrow  the  same,"  was  intended  to  protect 
the  company  and  policy  holders  from  the  dishonesty  or  self-interest  of  the 
officers,  and  did  not  render  a  loan  to  an  officer  illegal,  so  as  to  prevent  the 
company  from  recovering  on  his  promise  to  repay.  And  see  White  v.  Bank, 
22  Pick'  (Mass.)  181;  President,  etc.,  of  Atlas  Bank  v.  President,  etc.,  3  Mete. 
(Mass.)  581;  Parkersburg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct.  442,  27  L.  Ed. 
238;  Browning  v.  Morris,  2  Cowp.  790;  Smitli  v.  Bromley,  2  Doug.  696; 
Clarke  v.  Lumber  Co.,  59  Wis.  055,  18  N.  W.  492;  Mason  v.  McLeod,  57  Kan. 
105.  45  Pac.  7G,  41   L.  R.  A.  548,   57  Am.    St.   Rep.   327. 

344  Thomas  v.  City  of  Richmond,  12  Wall.  349,  20  L.  Ed.  453;  Oneida  Bank 
V.  Bank,  21  N.  Y.  490;  Smith  v.  Bromley,  2  Doug.  696.  Where  a  statute 
commands  cei'tain  paiiies  to  do  or  prohibits  them  from  doing  certain  acts, 
and  prescribes  penalties  for  their  violation  of  its  commands,  the  court  may 
not  inflict  other  penalties  for  its  violation  on  other  parties  not  named  in  the 
law  by  avoidance  of  their  contracts.  Hanover  Nat.  Bank  v.  Bank,  109  Fed. 
421,   48  C.  C.  A.   482. 


342  LEGALITY   OF  OBJECT.  (Otl.  8 

action,  and  is  privy  to  the  unl3:w:ful^ design,  and  by  virtue  of  his  em- 
ployment performs  services,  makes  disbursements,  suffers  losses,  or 
incurs  liabilities,  he  has  no  remedy  against  his  principal.^*'  Not  only 
is  this  true,  but  it  has  been  held  that  any  express  promise  made  by  the 
principal  to  reimburse  him  is  voidjji^  This,  of  course,  does  not  apply 
wliere  a  broker  is  employedTornake  contracts  the  illegality  of  whicli 
depends  on  the  intention  of  his  principal,  and  the  broker  is  not  aware 
of  such  intent;  as,  for  instance,  where  a  stock  or  grain  broker  is  em- 
ployed to  sell  stock  or  grain  on  the  exchange  for  future  delivery,  and 
he  is  not  aware  of  the  fact  that  his  principal  intends,  not  an  actual 
sale  and  delivery,  but  a  mere  gambling  on  the  rise  and  fall  of  prices.^*^ 

CONFLICT  OF  LA\VS. 

186.  IN  SPACE.      The  validity  of  a  contract  is  as  a  rule  determined 

by  tlie  law  of  the  place  where  it  is  made,  but  if  it  is  to  be  per- 
formed in  some  other  place  its  validity  is  as  a  rtQe  determined 
by  the  laxr  of  that  place. 

EXCFPTION— A  contract  xvill  not  be  enforced  where  to  enforce  it 
w^ould  be  injurious  to  the  interest  of  the  state  or  country  w^here 
it  is  sought  to  be  enforced,  or  of  its  citizens. 

187.  IN  TIMIL     An  agreement  \7hich  is  illegal  w^hen  made  is  not  ren- 

dered valid  by  subsequent  legislation.  On  the  other  hand  a 
change  in  the  law  cannot  render  illegal  an  agreement  w^hich 
w^as  legal  w^hen  made,  though  it  may  render  further  perform- 
ance impossible,  and  operate  as  a  discharge. 

84B  Greenh.  Pub.  Pol.  110  (collecting  tbe  cases);  HARVEY  v.  MERRILL. 
150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St.  Rep.  159;  Foss  v.  Cum- 
mmgs,  149  111.  353,  36  N.  E.  553;  Kirkpatrick  v.  Adams  (C.  C.)  20  Fed.  287; 
Gibbs  V.  Gas  Co.,  130  U.  S.  396,  9  Sup.  Ct.  553,  32  L.  Ed.  979;  Hooker  v. 
Knab,  26  Wis.  511;  Gregory  v.  Wendell,  39  Mich.  337,  33  Am.  Rep.  390; 
Fareira  v.  Gabell,  89  Pa.  89;  Cunningliam  v.  Bank,  71  Ga.  400,  51  Am. 
Rep.  266;  Stewart  v.  Scball,  65  Md.  308,  4  Atl.  399,  57  Am.  Rep.  327;  White- 
sides  V.  Himt,  97  Ind.  191,  49  Am.  Rep.  441;  Colderwood  v.  McCrea,  11 
Bradw.  (111.)  543;  Connor  v.  Black,  119  Mo.  126,  24  S.  W.  184;  Samuels  v. 
Oliver,  130  111.  73,  22  N.  E.  499;  Jamieson  v.  Wallace,  167  111.  38S,  47  N. 
E.  762,  59  Am.  St.  Rep.  302;  Rogers  v.  Marriott,  59  Neb.  759,  82  N.  W.  21. 
See,  also,  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819;  Tif- 
fany, Ag.  459. 

34  8  Everiugham  v.  Meighan,  55  Wis.  354,  13  N.  W.  269;  Embrey  v.  Jemi- 
son,  130  U.  S.  396,  9  Sup.  Ct.  776,  33  L.  Ed.  172;  Kahn  v.  Walton,  46  Ohio 
St.   195,   20   N.  E.  203. 

34  7  Rountree  v.  Smith,  108  U.  S.  269,  2  Sup.  Ct.  630,  27  L.  Ed.  722;  Invin 
V.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Edwards  v.  Hoef- 
finghoff  (C.  C.)  38  Fed.  635;  Lehman  v.  Feld  (C.  C.)  37  Fed.  852;  Boyd  v. 
Hanson  (C.  C.)  41  Fed.  174;  Pape  v.  Wright,  116  Ind.  502,  19  N.  E.  459; 
MOHR  V.  MIBSEN,  47  Minn.  228,  49  N.  W.  862;  Bartlett  v,  Collins,  109 
AVis.  477,  85  N.  W.  703,  83  Am.  St.  Hep.  928.  A  mere  expectation  on  the 
part  of  the  principal  and  broker,  in  sales  for  future  delivery,  that  purchasers 


§§  186-18Y)  CONFLICT   OF   LAWS.  343 

As  a  general  rule,  subject  to  exceptions  which  we  will  notice  briefly, 
the  legality  of  a  contract  is  to  be  determined  by  the  law  of  the  place 
where  it  is  made  and  is  to  be  performed.  If  it  is  valid  there  it  is  valid 
everywhere.  "This  rule  is  founded  on  the  tacit  consent  of  civilized 
nations,  arising  from  its  general  utility,  and  seems  to  be  a  part  of  the 
law  of  nations  adopted  by  the  common  law,"  ^*^  A  sale  of  goods,  for 
instance,  made  and  completed  by  delivery  in  one  state,  where  it  is 
valid,  will  be  enforced  in  another  state,  tliough  it  would  have  been 
invalid  if  made  in  the  latter  state.^*^     A  marriage,  also,  though  strictly 

from  the  principal  may  be  willing  to  adjust  the  transactions  by  paying  or 
receiving  differences,  when  there  is  no  agreement  to  that  effect,  does  not 
render  the  contract  illegal.  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403; 
ante,  p.  278.  In  England,  where  gaming  and  wageruig  contracts  are  held  not 
illegal  at  common  law,  but  were  by  statute  rendered  null  and  void,  but  not 
illegal,  money  paid  by  an  agent  in  pursuance  of  such  a  contract  was  recov- 
erable from  his  principal.  THACHER  v.  HARDY,  4  Q.  B.  D.  6S5.  And  see 
Read  v.  Anderson,  13  Q.  B.  D.  779;  Seymour  v.  Bridges,  14  Q.  B.  D.  4G0; 
Knight  V.  Lee  [1893]  1  Q.  B.  D.  41.  This  has  since  been  changed  by  stat- 
ute.    Tatam  v.  Reeve  [1S98]  1  Q.  B.  44. 

348  Pearsall  v.  Dwight,  2  Mass.,  at  page  89,  3  Am.  Dec.  35.  And  see  An- 
drews v.  Herriot,  4  Cow.  (N.  Y.)  508,  note  (where  the  earlier  cases  are  col- 
lected); Ward  V.  Vosburgh  (G.  C.)  31  Fed.  12;  Brown  v.  Finance  Co.,  Id. 
516;  SULLIVAN  v.  SULLIVAN,  70  Mich.  583,  38  N.  W.  472;  Western  & 
A.  R.  Co.  V.  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916,  2  L.  R.  A.  102;  Fessenden 
V.  Taft,  65  N.  H.  39,  17  Atl.  713;  Central  Trust  Co.  v.  Burton,  74  Wis.  329. 
43  N.  W.  141;  Appeal  of  Fowler,  125  Pa.  388,  17  Atl.  431,  11  Am.  St  Rep. 
902;  Atlantic  Phosphate  Co.  v.  Ely,  82  Ga.  438,  9  S.  E.  170;  Fairchild  v. 
Railroad  Co.,  148  Pa.  527,  24  Atl.  79;  FONSECA  v.  STEAMSHIP  CO.,  153 
Mass.  553,  27  N.  E.  6G5,  12  L.  R.  A.  340,  25  Am.  St.  Rep.  660;  O' Regan  v. 
Steamship  Co.,  160  Mass.  356,  35  N.  E.  1070,  39  Am.  St.  Rep.  484;  Thompson 
V.  Taylor,  66  N.  J.  Law,  253,  49  Atl.  544,  54  L.  R.  A.  585.  88  Am.  St.  Rep. 
485.  A  note  executed  in  one  state,  and  free  from  usury  under  its  laws,  is 
valid  in  another  state,  though,  if  made  in  the  latter  state,  it  would  have 
been  usurious.  Brown  v.  Finance  Co.,  supra;  Matthews  v.  Paine,  47  Ark. 
54,  14  S.  W.  463 ;  Van  Vleet  v.  Sledge  (C.  C.)  45  Fed.  743 ;  Mott  v.  Rowland, 
85  Mich.  561,  48  N.  W.  638;  Staples  v.  Nott,  128  N.  Y.  403,  28  N.  E.  515,  26 
Am.  St.  Rep.  480;  Buchanan  v.  Bank,  55  Fed.  223,  5  C.  C.  A.  83.  Note  on 
gaming  consideration,  valid  where  it  was  made  and  the  transaction  took  place, 
is  enforceable  in  a  state  under  whose  laws  it  would  have  been  void.  Sond- 
heim  v.  Gilbert,  117  Ind.  71,  18  N.  E.  687,  5  L.  R.  A.  432,  10  Am.  St.  Rep. 
23.  Dealings  in  futures.  Ward  v.  Vosburgh  (C.  C.)  31  Fed.  12;  Lehman  v 
Feld,  37  Fed.  852.  Sunday  conti-act.  McKee  v.  Jones,  67  Miss.  405,  7  South. 
348;  Arbuckle  v.  Reaume,  96  Mich.  2i3,  55  N.  AV.  808;  Adams  v.  Gay,  19 
Vt.  358;  Swann  v.  Swann  (C.  C.)  21  Fed.  299;  Brown  v.  Browning,  15  R. 
I.  422,  7  Atl.  403,  2  Am.  St  Rep.  90S;  O'Rourke  v.  O'Rourke,  43  Mich.  58, 
4  N.  W.  531.  Contract  in  consideration  of  dismissal  of  criminal  prosecution 
valid  where  made.    Harrison  v.  Baldwin,  5  Ohio  Cir.  Ct  R.  310. 

349  Greenwood  v.  Curtis,  6  Mass.  377,  4  Am.  Dec.  145;  Grant  v.  McLachlin. 
4  Johns.  (N.  Y.)  34;  Braim  v.  Keally,  146  Pa.  519,  23  Atl.  380,  28  Am.  St 
Rep.  811;  Brinker  v.  Scheunemann,  43  111.  App.  659;  Dame  v.  Flint  64  Vt 
533,  24  Atl.  1051;  Claflin  v.  Meyer,  41  La.  Ann.  1048,  7  South.  139;  Ken\in 
V.  Doran,  29  Mo.  App.  397;   Wagner  v.  Breed,  20  Neb.  720,  46  N.  W.  286. 


344  LEGALITY   OF  OBJECT.  (Ch.  8 

not  a  contract,  is  governed  by  the  same  principle.  If  valid  where  it  is 
executed,  it  is  valid  everywhere.^  ^^  On  the  other  hand,  a  contract 
which  is  invalid  where  it  is  made  and  is  to  be  performed  is  invalid 
everywhere.  A  note,  for  instance,  which  is  void  for  usury  in  the  state 
where  it  is  executed,  is  void  in  another  state,  though,  if  made  in  the 
latter,  it  would  have  been  valid.^^^ 

The  rule  that  a  contract  which  is  valid  where  it  is  made  and  is  to 
be  performed  is  valid  everywhere  is  subject  to  exceptions.  No  state 
is  bound  to  recognize  and  enforce  a  contract  which  is  injurious  to  its 
own  interests,  or  to  the  interests  of  its  citizens.  "This  exception  re- 
sults from  the  consideration  that  the  authority  of  the  acts  and  con- 
tracts done  in  other  states,  as  well  as  the  laws  by  which  they  are  regu- 
lated, are  not,  proprio  vigore,  of  any  efficacy  beyond  the  territories  of 
that  state ;  and  whatever  effect  is  attributed  to  them  elsewhere  is  from 
comity,  and  not  of  strict  right.  And  every  independent  community 
will  and  ought  to  judge  for  itself  how  far  that  comity  ought  to  extend. 
The  reasonable  limitation  is  that  it  shall  not  suffer  prejudice  by  its 
comity.  *  *  *  Contracts,  therefore,  which  are  in  evasion  or  fraud 
of  the  laws  of  a  country,  or  of  the  rights  or  duties  of  its  subjects;  con- 
tracts against  good  morals,  or  against  religion,  or  against  public  rights ; 
and  contracts  opposed  to  the  national  policy  or  national  institutions, — 
are  deemed  nullities  in  every  country  affected  by  such  considerations, 
although  they  may  be  valid  by  the  laws  of  the  place  where  they  are 
made."  *°^     To  illustrate  this  exception,  a  contract  made  in  one  coun- 

3  50  Com.  V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509;  Sutton  v.  Warren, 
10  Mete.  (Mass.)  451;  Scrimsliire  v.  Scrimsbire,  2  Hagg.  Const.  395;  Ilderton 
V.  Ilderton,  2  H.  Bl.  145;  Inhabitants  of  West  Cambridge  v.  Inhabitants 
of  Lexington,  1  Pick.  (Mass.)  507,  11  Am.  Dec.  168;  Thorp  v.  Thorp,  90 
N.  Y.  602,  43  Am.  Rep.  189;  Jackson  v.  Jackson,  82  Md.  17,  33  Atl.  137,  34 
L.  R.  A.  773.  Cf.  In  re  Stall's  Estate,  183  Pa.  625,  39  Atl.  16,  63  Am.  St.  Rep. 
776;  McLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L.  R.  A.  863,  65 
Am.  St.  Rep.  815. 

3  51  Van  Schaick  y.  Edwards,  2  Johns.  Cas.  (N.  Y.)  355;  Matthews  v. 
Paine,  47  Ark.  54,  14  S.  W.  4^;  Meroney  v.  Association,  112  N.  C.  842,  17 
S.  E.  637.  Note  void  for  gaming  in  France,  where  it  is  made,  is  void  in 
England.  Robinson  v.  Bland,  2  Burrows,  1077.  And  see,  for  other  cases, 
Touro  V.  Cassin,  1  Nott  &  McC.  (S.  C.)  173,  9  Am.  Dec.  GSO;  Tolman  Co. 
V.  Reed,  115  Mich.  71,  72  N.  W.  1104 ;  Washington  Nat.  Building  Loan  &  Inv. 
Co.  V.  Stanley,  38  Or.  319,  63  Pac.  489,  58  L.  R.  A.  816,  84  Am.  St.  Rep.  793 ; 
Alexander  v.  Barker,  64  Kan.  396,  67  Pac.  829.  Sale  made  in  another  state  in 
violation  of  its  liquor  laws.  Tredway  v.  Riley,  32  Neb.  495,  49  N.  W.  268,  29 
Am.  St.  Rep.  447 ;  Wind  v.  Her,  93  Iowa,  316,  61  N.  W.  1001,  27  L.  R.  A.  219. 
Stipuliation  relieving  carrier  from  liability.  Brockway  v.  Express  Co.,  168 
Mass.  257,  47  N.  E.  87. 

362  story,  Confl.  Law,  §  244;  Randall  v.  Protective  Union,  43  Neb.  876, 
62  N.  W.  252.  And  see  Greenwood  v.  Curtis,  6  Mass.  378,  4  Am.  Dec.  145; 
Davis  V.  Bronson,  6  Iowa,  410;  Kentucky  v.  Bassford,  G  Hill  (N.  Y.)  ri26; 
Teiritt  v.  Bartlett,  21  Yt.  189;   Blanchard  v.  Russell,  13  Muss.  6,  7  Am.  Dec. 


§§  186-187)  CONFLICT  OF  LAWS.  345 

try  to  smuggle  goods  into  another  in  violation  of  its  laws  will  not  be 
enforced  in  the  latter  country.^''*  So  also  a  sale  of  intoxicating  liquors 
or  other  goods  in  one  state  will  not  be  enforced  in  another  state,  where 
the  intention  of  both  parties  was  to  import  the  goods  into  the  latter 
state,  and  sell  them  in  violation  of  its  laws.^*^*  So  of  contracts  made 
in  a  foreign  country  for  future  illicit  cohabitation  and  prostitution.^"** 
An  exception  to  the  rule  that  contracts  which  are  invalid  where  they 
are  made  are  invalid  everywhere  is  in  the  case  of  contracts  violating 
the  revenue  laws.  It  seems  to  have  been  an  established  doctrine  of 
the  common  law  that  a  nation  will  not  recognize  or  enforce  the  revenue 
laws  of  another  country,  and  that  the  contracts  of  its  own  subjects, 
made  to  evade  or  defraud  the  revenue  laws  of  foreign  nations,  may  be 
enforced  in  its  own  courts.^'®  This  doctrine  has  been  deprecated  by 
eminent  judges  and  lawyers,  and  the  later  cases  have  shown  a  tendency 
to  hold  the  contrary.*^^ 

1;  In  re  Dalpay,  41  Minn.  532,  43  N.  W.  564,  6  L.  R.  A.  108,  16  Am.  St  Rep. 
729;  Savings  Bank  of  Kansas  v.  Bank  (C.  C.)  38  Fed.  800;  Kilcrease  v. 
Johnson,  85  Ga.  GOO,  11  S.  E.  870;  Armstrong  v.  Best,  112  N.  C.  59,  17  S.  E. 
14,  25  L.  R.  A.  1(88,  84  Am.  St.  Rep.  473.  See,  also,  Oscanyan  v.  Arms  Co., 
103  U.  S.  261,  26  L.  Ed.  539.  A  contract  made  in  another  state,  though  valid 
there,  will  not  be  enforced  if  it  is  opposed  to  the  public  policy  of  the  state 
of  the  forum.  The  Kensington,  183  U.  S.  263,  22  Sup.  Ct.  102,  46  L.  Ed.  190; 
Seamans  v.  Temple  Co.,  105  Mich.  4r00,  63  N.  W.  408,  28  L.  R.  A.  430,  55 
Am.  St.  Rep.  457;  Thompson  v,  Taylor,  65  N,  J.  Law,  107,  46  Atl.  567; 
Bartlett  v.  Collins,  109  Wis.  477,  85  N.  W.  703,  83  Am.  St.  Rep.  928;  Gooch 
V.  Faucett,  122  N.  C.  270,  29  S.  E.  302,  39  L.  R.  A.  885;  Winward  v.  Lincoln, 
23  R.  I.  476,  51  Atl.  106;  WelUng  v.  Association,  56  S.  C.  280.  34  S.  E.  409; 
Parker  v.  Moore,  115  Fed.  799,  53  C.  C.  A.  369.  But  see  FOXSECA  v. 
STEAMSHIP  CO.,  153  Mass.  553,  27  N.  K  665,  12  L.  R.  A.  340,  25  Am.  St. 
Rep.  660;  O'Regan  v.  Same,  160  Mass.  356,  35  N.  B.  1070,  39  Am.  St.  Rep. 
484. 

8  53  Armstrong  v.  Toler,  11  Wheat.  258,  6  L.  Ed.  468;  HOLM  AN  v.  JOHN- 
SON, Cowp.  341.    See,  also,  ante,  p.  329. 

854  Aiken  v.  Blaisdell,  41  Vt.  655;  Banchor  v.  Mansel,  47  Me.  58;  Webster 
V.  Munger,  8  Gray  (Mass.)  584;  Davis  v.  Bronson,  6  Iowa,  410.  Or  even  in 
tiae  state  where  the  sale  was  made.  GRAVES  v.  JOHNSON,  156  Mass. 
211,  30  N.  E.  818,  15  L.  R.  A.  834,  3  Am.  St.  Rep.  446. 

355  Walker  v.  Perkins,  3  Burrows,  1568;  Jones  v.  Randall,  Cowp.  37;  De 
Sobry  v.  De  Laistre.  2  Har.  &  J.  (Md.)  at  page  228,  3  Am.  Dec.  555;  Robinson 
V.  Bland,  2  Burrows,  1084.  Marriage  valid  where  entered  into,  but  incestuous 
in  Pennsylvania,  will  not  be  there  recognized.  U.  S.  v.  Rodgers  (D.  C.)  109 
Fed.  886. 

856  Story,  Confl.  Law,  §§  245,  256,  257;  Boucher  v.  Lawson,  Cas.  t.  Hardw. 
84,  89,  191;  HOLM  AN  v.  JOHNSON,  Cowp.  341;  Ludlow  v.  Van  Rensselaer, 
1  Johns.  (N.  Y.)  94. 

3  57  Story,  Confl.  Law,  §§  245,  256,  257.  A  bill  or  note  void  for  want  of  a 
stamp  is  void  everywhere,  though,  if  the  stamp  is  merely  a  condition  of  its 
admissibility  in  evidence,  this  will  have  no  effect  outside  the  jimsdiction. 
Alves  V.  Hodgson,  7  T.  R,  241;  Bristow  v.  SequevUle,  5  Ex.  275;  Fant  v. 
Miller,  17  Grat.  (Va.)  47. 


346  LEGALITY   OF   OBJECT.  (Cb.  8 

The  rule  stated  at  the  beginning  of  this  paragraph  only  appUes,  it 
will  be  noticed,  where  the  contract  is  to  be  performed  where  it  is  made. 
Where  it  is  either  expressly  or  by  implication  to  be  performed  at  some 
other  place,  "there  the  general  rule  is  in  conformity  to  the  presumed 
intention  of  the  parties  that  the  contract,  as  to  its  validity,  *  *  * 
is  to  be  governed  by  the  law  of  the  place  of  performance."  ^^^ 

Change  of  Law. 

An  agreement  which  is  illegal  and  void  at  the  time  of  its  inception 
cannot  be  rendered  valid  by  subsequent  legislation;  '^^  nor,  on  the  other 
hand,  can  a  change  of  the  law  render  invalid  a  contract  which  was 
valid  when  made.^®"  Where,  however,  performance  of  a  contract  law- 
ful in  its  inception  is  made  unlawful  by  any  subsequent  legislation  or 
event,  the  contract  is  thereby  dissolved,  unless  the  statute,  to  have  this 
effect,  would  be  unconstitutional,  as  impairing  the  obligation  of  con- 
tract. 

3  88  story,  Confl.  Law,  §  280;  Andrews  v.  Pond,  13  Pet.  65,  10  L.  Ed.  61; 
Frazier  v.  Warfleld,  9  Smedes  &  M.  (Miss.)  220;  Thayer  v.  Elliott,  16  N.  H. 
104;  First  Nat.  Bank  v.  Hall  (Pa.)  24  Atl.  665;  Livei-pool  &  G.  W.  Steam 
Co.  V.  Insurance  Co.,  129  U.  S.  397,  9  Sup.  Ct  469,  32  L.  Ed.  788.  That  a 
note  Is  governed  by  the  law  of  the  place  where  it  is  payable,  see  Stevens  v. 
Gregg  (Ky.)  12  S.  W.  775;  Tenant  v.  Tenant,  110  Pa.  478,  1  Atl.  532;  Barrett 
V.  Dodge,  16  R.  I.  740,  19  Atl.  530,  27  Am.  St.  Rep.  777;  Bigelow  v.  Bum- 
ham,  S3  Iowa,  120,  49  N.  W.  104,  32  Am.  St.  Rep.  294;  Bennett  v.  Eastern 
Building  &  Loan  Ass'n,  177  Pa.  233,  35  Atl.  684,  34  L.  R.  A.  595,  55  Am.  St. 
Rep.  723;  Building  &  Loan  Ass'n  of  Dakota  v.  Logan,  66  Fed.  827,  14  C. 
C.  A.  133;  Hieronymus  v.  Association  (C.  C.)  101  Fed.  12.  Contract  to  be 
performed  partlj'  in  state  where  made  and  partly  elsewhere.  Bartlett  v. 
Collins,  109  Wis.  477,  85  N.  W.  703,  83  Am.  St  Rep.  928. 

3  59  HANDY  v.  PUBLISHING  CO.,  41  Minn.  188,  42  N.  W.  872,  4  L.  R.  A. 
466,  16  Am.  St.  Rep.  695;  Puckett  v.  Alexander,  102  N.  C.  95,  8  S.  E.  767, 
3  L.  R.  A.  43;  Mays  v.  Williams,  27  Ala.  267.  Repeal  of  law  does  not  validate 
prior  invalid  contract.  Hathaway  v.  Moran,  44  Me.  67;  Hughes  v.  Boone, 
102  N.  C.  137,  9  S.  E.  2S0;  Robinson  v.  Barrows,  48  Me.  186;  Banchor  r. 
Mansel,  47  Me.  58;  Webber  v.  Howe,  36  Mich.  150,  24  Am.  Rep.  590;  Anding 
V.  Levy,  57  Miss.  51,  34  Am.  Rep.  435;  Gilliland  v.  Phillips,  1  S.  C.  152;  Bailey 
V.  Mogg,  4  Denio  (N.  Y.)  60;  Ottaway  v.  Lowden,  55  App.  Div.  410,  66 
N.  Y.  Supp.  952;  Denning  v.  Yount,  62  Kan.  217,  61  Pac.  803,  50  L.  R.  A. 
103.  Otherwise  where  contract  merely  voidable  and  not  void.  Ewell  v. 
Daggs,  108  U.  S.  143,  2  Sup.  Ct.  408,  27  L.  Ed.  682.  And  see  Hartford  Fire 
Ins.  Co.  v.  Railway  Co.  (C.  C.)  62  Fed.  904. 

8  00  Boyce  v.  Tabb,  18  Wall.  540,  21  L.  Ed.  757;  Jump  v.  Johnson  (Ky.) 
13  S.  W.  S13;  Richardson  v.  Campbell,  34  Neb.  181,  51  N.  W.  753,  33  Am. 
St.  Rep.  033;  Knight  v.  Lee  [1893]  1  Q.  B.  41;  Stephens  v.  Railway  Co.,  109 
Cal.  S6,  41  Pac.  783,  29  L.  R.  A.  751,  50  Am.  St.  Rep.  17. 


§  188)  orERATioN  or  contract.  347 


|3 

CHAPTER  IX. 

OPERATION  OF  CONTRACT. 


1S8.  Limits  of  Contractual  Relation — In  General 
189-190.  Imposing  Liability  on  Third  Persons. 

191-192.  Conferring  Rights  on  Third  Persons. 

193.  Assignment  of  Contracts — In  General. 

194.  Assignment  of  Liabilities  by  Act  of  Parties. 
195-197.  Assignment  of  Rights  by  Act  of  Parties. 

198.  Assignment  by  Operation  of  Law. 

199.  On  Transfer  of  Interests  in  Land. 

200.  On  Marriage. 

201.  On  Death. 

202.  Joint  and  Several  Contracts — In  General. 
203-204.  Joint  Contracts. 

205-206.  Several  Contracts. 

207.  Contracts  both  Joint  and  Several. 

208.  Contribution  between  Joint  Debtors. 

Thus  far  we  have  endeavored  to  show  what  is  necessaiy  to  the 
formation  and  existence  of  a  vahd  contract.  Having  ascertained  this, 
we  must  next  consider  its  effect  when  formed.  In  doing  so  we  will 
first  ascertain  to  whom  the  obligation  of  a  contract  extends,  or  who 
have  rights  or  liabilities  under  it.  Then  we  shall  ascertain  the  extent 
to  which  the  rights  and  liabilities  may  be  assigned  or  pass  to  others 
than  the  original  parties.  After  that  we  will  consider  the  operation 
and  effect  of  a  contract  having  several  parties  on  one  or  both  sides. 


LIMITS  OF  CONTRACTUAL  RELATION— IN  GENERAL. 

188.    As  a  rule,  a  contract  does  not  impose  liabilities  nor  confer  rights 
on  a  person  xirh.o  is  not  a  party  to  it. 

EXCEPTIONS — (a)    There   are   apparent   exceptions   to  this   rule: 

(1)  WTiere  one  person  represents  another  in  entering  into  a  con- 

tract;   that  is,  in  the  case  of  contracts  throngh  agents. 

(2)  'Where  the  rights  or  liabilities  created  by  a  contract  pass  to 

a.  person  or  persons   other  than  the  original  parties  by  as- 
signment, 
(b)    There  are  also  real  exceptions  to  the  rule  in  some  jurisdictions. 

The  rule  that  a  person  who  is  not  a  party  to  a  contract  cannot  be 
included  in  the  rights  or  liabilities  which  it  creates,  so  as  to  entitle  him 
to  sue,  or  render  him  liable  to  be  sued,  upon  it,  flows  from  the  very 
nature  of  contract  as  a  legal  conception.     As  we  have  seen,  a  true  con- 


348  OrERATION  OF  CONTRACT.  (Ch.  9 

tract  is  an  agreement  between  two  or  more  persons,  by  which  an  ob- 
ligation or  legal  tie  is  created,  binding  those  persons  together,  so  that 
one  or  each  has  the  right  to  require  some  act  or  forbearance  on  the 
part  of  the  other.  As  a  rule,  the  legal  relations  of  third  persons  are 
not  affected,  because  they  are  not  parties  to  the  agreement.  They  are 
not  bound  by  the  legal  bond  which  it  creates,  and  a  breach  thereof 
cannot  give  them  any  rights.  Nor,  on  the  other  hand,  can  any  liabili- 
ties be  imposed  upon  them. 

It  will  be  noticed  that  the  rule  stated  in  the  black-letter  text  is  divis- 
ible. There  are  in  fact  two  rules, — the  first,  that  a  contract  cannot  im- 
pose liabiHties,  and  the  second,  that  it  cannot  confer  rights,  on  a  per- 
son who  is  not  a  party  to  it.^  We  can  better  reach  a  correct  under- 
standing of  the  law  on  this  subject  if  we  consider  each  of  these  rules 
separately,  together  with  the  exceptions,  or  apparent  exceptions,  pe- 
culiar to  it;  but  before  doing  so  we  must  notice  two  apparent  excep- 
tions to  the  rule  as  a  whole. 

Apparent  Exceptions  to  the  Rule — Agency. 

Although  one  person  cannot,  as  a  rule,  by  contract  with  another, 
impose  liabilities,  nor  confer  rights,  on  a  third  person  not  a  party  to 
the  contract,  one  person  may  rej^rgsent  another,  as  being  employed  by 
him,  for  the  purpose  of  bringing  him  into  contractual  relations  with  a 
third.  Employment  for  this  purpose  is  called  "ageiLcy,"  the  employer 
being  call'ed  the  "principal"  and  the  employed  his  "agent."  The  acts 
of  the  agent  in  malcing  contracts  are  done  on  behalf,  and  generally, 
though  not  necessarily,  in  the  name,  of  his  principal.  The  principal 
really  becomes  a  party  to  the  contract  made  for  him  by  his  agent.  A 
contract  made  by  an  agent  can  bind  the  principal  only  by  force  of  a 
previous  authority  or  subsequent  ratification  by  the  principal,  and  this 
auttIorrfy"or~fatification  is  nothing  else  than  the  assent  of  the  principal 
to  be  bound.  The  contract  which  binds  him  is  his  own  contract. 
After  all,  therefore,  this  is  only  an  apparent  exception  to  the  rule  that 
persons  not  parties  to  a  contract  are  not  bound  or  given  rights  thereby. 

The  subject  of  agency  will  be  dealt  with  in  a  subsequent  chapter. 

Same — Assignment  of  Contracts. 

If  John  Doe  contracts  with  Richard  Roe,  their  contract  cannot  im- 
pose liabilities  or  confer  rights  upon  John  Styles.  There  are  circum- 
stances, however,  under  which  John  Doe  or  Richard  Roe  may  substi- 
tute John  Styles  for  himself  as  a  party  to  the  contract,  and  there  are 
circumstances  under  which  the  law  would  operate  to  effect  this  sub- 
stitution. John  Styles  thus  becomes  a  party  to  the  contract.  This 
substitution  is  called  assignment  of  the  contract.  Before  discussing 
assignment  we  will  take  up  in  turn,  and  explain,  each  subdivision  of 

1  Alison,  Cont.  (4tli  Ed.)  209. 


§§  189-190)  LIMITS    OF    CONTRACTUAL   RELATION.  349 

the  general  rule  mentioned  in  the  black-letter  text,  and  show  the  ex- 
ceptions to  which  it  is  subject. 


SAME— IMPOSING  LIABILITY  ON  THIRD  PERSONS. 

189.  A   contract   cannot  impose   liabilities    on   a   person  \xrh.o   is   not  a 

party  to  it. 

190.  A   contract,  hovirever,   bettreen  master   and   servant  at  least,   im- 

poses a  duty  on  tbird  persons  not  to  interfere  malicionsly  witb 
its  performance  by  inducing  tbe  servant  to  break  it,  and  for  a 
violation  of  tbis  duty  an  action  veill  lie.  Many  courts  bold 
tbat  tbe  doctrine  applies  to  all  contracts. 

The  proposition  that  a  man  cannot  incur  liabilities  from  a  contract 
to  which  he  was  not  a  party  is  a  part  of  a  wider  rule  that  liability  ex 
contractu  cannot  be  imposed  upon  a  man  otherwise  than  by  his  act  or 
consent.  "A  man  cannot,  of  his  own  will,  pay  another  man's  debt 
without  his  consent,  and  thereby  convert  himself  into  a  creditor."  - 
Two  persons  cannot,  by  any  contract  into  which  they  may  enter,  there- 
by impose  liabilities  upon  a  third  person.^  Where  a  person,  for  in- 
stance, contracts  with  another  to  perform  services  for  him,  or  to  sell 
him  goods,  he  may,  under  some  circumstances,  procure  the  services 
to  be  rendered  or  the  goods  delivered  by  a  third  person,  and  thus  per- 
form his  contract;  but  he  cannot,  by  any  such  agreement  with  a  third 
person,  confer  upon  the  latter  the  right  to  require  payment  of  the  other 
party.  Nor  will  the  law  create  a  contract  between  the  latter  and  such 
third  person  because  of  the  acceptance  of  the  services  or  goods,  where 
there  was  no  intention  to  enter  into  legal  relations  with  the  third  per- 
son.* 

Contract  may  Impose  Duty  on  Third  Parties. 

Though|'a  contract  cannot  impose  the  burdens  of  an  obligation  upon 
one  who  was  not  a  party  to  it,  it  may  impose  a  duty  upon  persons  ex- 
traneous to  the  obligation  not  to  interfere  maliciously  with  its  due  per- 
formance. In  a  leading  English  case,  Lumley  v.  Gye,"^  where  a  person 
induced  a  singer  to  break  her  contract  with  the  manager  of  an  opera 
house,  and  was  sued  by  the  manager  for  maliciously  procuring  the 
breach,  it  was  argued  (i)  that  an  action  would  lie  against  one  who  pro- 
cured the  breach  of  any  kind  of  contract ;  and  (2)  tliat,  if  that  were  not 

2  Durnford  v.  Messiter,  5  Maule  &  S.  440;    Heam  v.  Cnllin,  54  Md.  533. 

3  Rossman  v.  Townsend,  17  Wis.  98,  84  Am.  Dec.  733;  BoUes  v.  Carli, 
12  Minn.  113  (Gil.  62). 

4  Sclimaling  v.  Thomlinson,  6  Taunt.  147;  BOSTON  ICE  CO.  v.  POTTER, 
123  Mass.  2S,  25  Am.  Rep.  9;  Scliool  Dist.  of  Beatrice  v.  Tlaomas,  51  Neb. 
740,  71  N.  W.  731;   post,  p.351- 

6  2  El.  &  Bl.  216. 


350  OPEKATION  OF  CONTRACT.  (Ch.  9 

SO,  an  action  would  lie,  at  any  rate,  for  inducing  a  servant  to  quit  the 
service  of  his  master.  The  relation  of  master  and  servant  has  always 
been  held  to  involve  a  right  on  the  part  of  the  master  to  sue  any  one 
who  enticed  away  his  servant,  and  so  the  court  was  called  upon  to  an- 
swer two  questions :  Does  an  action  lie  for  procuring  a  breach  of  any 
contract?  If  not,  then  does  the  exceptional  rule  applicable  to  the  con- 
tract of  master  and  servant  apply  to  the  manager  of  a  theater  and 
the  actors  whom  he  engages  to  perform?  The  majority  of  the  court 
answered  both  questions  in  the  affirmative,  with  the  qualification  that 
the  inducement  must  be  malicious.  Later  English  cases  have  affirmed 
this  decision,  but  upon  the  broad  ground  that  it  is  an  actionable  wrong 
maliciously  to  induce  another  to  break  a  contract.^  If  the  interference 
is  used  for  the  purpose  of  injuring  the  plaintiff  or  of  benefiting  the 
defendant  at  the  expense  of  the  plaintiff,  the  conduct  is  malicious. 
The  same  doctrine  has  been  held  by  many  courts  in  this  country.^  On 
the  other  hand,  some  courts  have  held  that  the  doctrine  does  not  apply 
to  other  contracts  than  the  contract  between  master  and  servant.*  As 
to  this  contract,  there  is  probably  no  conflict  at  all.^ 

6  Bowen  V.  Hall,  6  Q.  B.  Uiv.  339;   Temperton  v.  Enssell  [1893]  1  Q.  B.  376. 

7  WALKER  V.  CRONIN,  107  Mass.  555;  Jones  v.  Stanly,  76  N.  C.  355; 
Lucke  V.  Clothing  Cutters,  77  Md.  396,  26  Atl.  505,  19  L.  R.  A.  408,  39  Am. 
St.  Rep.  421;  Jones  v.  Blocker,  43  Ga.  331;  iChipIey  v.  Atkinson,  23  Fla. 
206,  1  South.  934,  11  Am.  St.  Rep.  367 ;  Haskins  v.  Royster,  70  N.  C.  601,  16 
Am.  Rep.  780 ;  Angle  v.  Railroad  Co.,  151  U.  S.  1,  14  Sup.  Ct.  240,  38  L.  Ed. 
55 ;  Van  Horn  v.  Van  Horn,  56  N.  J.  Law,  318,  28  Atl.  669 ;  Morgan  v,  An- 
drews, 107  Mich.  33,  64  N.  W.  869.  And  see  Ensor  v.  Bolgiano,  67  Md.  190, 
9  Atl.  529 ;  Dudley  v.  Briggs,  141  Mass.  582,  6  N.  E.  717,  55  Am.  Rep.  494 ; 
Burgess  v.  Carpenter,  2  S.  C.  7,  16  Am.  Rep.  643 ;  Doremus  v.  Hennessy,  176 
111.  608,  52  N.  E.  924,  43  L.  R.  A.  797,  68  Am.  St.  Rep.  203. 

8  Chambers  v.  Baldwin,  91  Ky.  121,  15  S.  W.  57,  11  L.  R.  A.  545,  34  Am. 
St.  Rep.  165;  Ashley  v.  Dixon,  48  N.  Y.  430,  8  Am.  Rep.  559;  Heywood  v. 
'HUson,  75  Me.  225,  40  Am.  Rep.  373;  Bourlier  v.  Macauley,  91  Ky.  135,  15 
S.  W.  60,  11  L.  R.  A.  550,  34  Am.  St.  Rep.  171;  Boyson  v.  Thorn,  98  Cal. 
578,  33  Pac.  492,  21  L.  R.  A.  233;  Glencoe  Land  &  Gravel  Co.  v.  Commission 
Co.,  138  Mo.  439,  40  S.  W.  93,  36  L.  R.  A.  804,  60  Am.  St.  Rep.  560.  All 
the  courts  probably  agree,  however,  that  an  action  will  lie  by  a  pai-ty  to  a 
contract  against  a  third  person  for  fraudulent  representations  by  the  latter, 
inducing  the  other  party  to  the  contract  to  break  it.  Rice  v.  Manley,  66 
N.  Y.  82,  23  Am.  Rep.  30;  Benton  v.  Pratt,  2  Wend.  (N,  Y.)  385,  20  Am.  Dec. 
623;   Ashley  v.  DLxon,  48  N.  Y.  430,  8  Am.  Rep.  559. 

0  Bi.xby  v.  Dunlap,  50  N.  H.  450,  22  Am.  Rep.  475;  NOICE  v.  BROWN, 
39  N.  J.  Law,  509;  Heywood  v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373;  Wood- 
ward V.  Washburn,  3  Denio  (N.  Y.)  369;  WALKER  v.  CRONIN,  107  Mass. 
555;  Ames  v.  liailway  Co.,  117  Mass.  541,  19  Am.  Rep.  426;  Haskins  v. 
Royster,  70  N.  C.  601,  16  Am.  Rep.  780;  Jones  v.  Blocker,  43  Ga.  331;  Daniel 
V.  Swearengeu,  6  S.  C.  297,  24  Am.  Rep.  471;  Huff  v.  Watkins,  15  S.  C 
82,  40  Am.  Rep.   680. 


§§  191-192)  LIMITS   OF   CONTRACTUAL  RELATION.  351 


SAME— CONFERRING  RIGHTS  ON  THIRD  PERSONS. 

191.  As  a  rule,  a  contract  cannot  confer  rights  on  a  person  Yirlio  is  not 

a  party  to  it. 

192.  EXCEPTIONS— (a)    The  rule  is  subject  to  apparent  exceptions  as 

folloAvs: 

(1)  If  the  contract  is  such  as  to  constitute  the  promisor  trustee 

for   the   benefit  of  the   third  person,   the   latter  may  sue   in 
equity. 

(2)  AVhere  money  or  other  property  has  come  into  the  promisor's 

hands  by  virtue  of  the   contract,   for  the   use   of  the   third 

person,   the   lawr   creates   a  so-called    contract   betwreen   him 

and  such  third  person,  on  tirhich  the  latter  may  sue. 

(b)    In  many  of  the  states  an  exception  is  made  in  case  of  a  promise 

made  for  the  benefit  of  a  third  person,  and  the  latter  is  allowed 

to  sue  thereon.      It  seems,  hoixrever,  that  there  must  be  such  a 

relation  betiveen  the  promisee  and  the  person  for  Trhose  benefit 

the  proniLse  is  made  as  makes  the  performance  of  the  promise 

a   satisfaction    of    some   legal   or   equitable    duty    oi^ring  l»y   the 

former  to  the  latter. 

This  rule,  in  its  general  application,  is  recognized  by  all  courts.  It 
is  settled,  for  instance,  that  where  a  bilateral  contract  is  made,  a  third 
person  cannot  perform  for  one  of  the  parties,  and  himself  claim  per- 
formance by  the  other.  He  cannot  thus  acquire  rights  under  the  con- 
tract, even  by  agreement  with  the  party  whose  promise  he  performs, 
unless  the  contract,  as  will  be  presently  explained,  is  assignable,  and  is 
assigned.  This  is,  in  effect,  another  way  of  looking  at  the  rule  which 
we  have  already  considered, — that  a  contract  cannot  impose  liabilities 
on  a  person  not  a  party  to  it. 

In  a  leading  English  case,  shippers  had  employed  a  firm  of  brokers 
to  transport  a  quantity  of  cocoa  for  them,  and  the  brokers  got  a  third 
person  to  do  it.  It  was  held  that  the  latter  could  not  sue  the  shippers 
for  his  expenses  and  commission,  inasmuch  as  there  was  no  privity  of 
contract  between  him  and  them.  It  was  said  that  the  brokers  were 
employed  by  the  shippers  to  do  the  whole  work  for  them ;  that  the 
shippers  looked  to  the  brokers  for  the  performance  of  the  work,  and 
the  brokers  had  a  right  to  look  to  them  for  payment,  and  that  no  one 
else  had  that  right.  ^"^  This  case  illustrates  both  of  the  rules  which  we 
are  considering.  The  contract  between  the  brokers  and  the  third  per- 
son could  not  impose  a  liability  on  the  shippers,  as  they  were  not  par- 
ties to  it ;  nor  could  the  contract  between  the  shippers  and  the  brokers 
confer  any  rights  upon  the  third  person,  since  he  was  not  a  party  to  it. 

Thus  far  the  rule  is  clear  and  is  not  controverted."     A  difficulty, 

10  Schmaling  v.  Thomlinson,  6  Taunt.  147. 

11  Standard  Oil  Co.  v.  Murray,  119  Fed.  572,  57  C.  C.  A.  1.  To  the  effect 
that  a  company  which  has  contracted  with  a  city  to  supply  it  with  water 


352  OPERATION  OF  CONTRACT.  (Ch.  9 

and  considerable  difference  of  opinion,  arises,  however,  where  the  con- 
tract consists  of  a  promise  expressly  made  by  one  of  the  parties  for 
the  benefit  of  a  third  person ;  as,  where  one  of  the  parties,  for  a  con- 
sideration moving  from  the  other,  promises  him  to  pay  money  to,  or 
perform  services  for,  a  stranger  to  the  contract.  There  may  be  said 
to  be  three  different  doctrines  on  this  point;  and  probably  there  are 
more.  For  convenience  we  will  call  them  the  English,^ ^  the  Massa- 
chusetts, and  the  New  York  doctrines,  and  will  treat  them  separately. 

Promise  for  Benefit  of  Third  Person — The  English  Doctrine. 

If  two  persons  should  make  a  contract  in  which  one  promises  to  do 
something  for  a  third  person,  all  three  might  be  willing  that  such  third 
person  should  have  all  the  rights  of  an  actual  contracting  party,  and 
should  be  allowed  to  sue  on  the  promise.     In  England,  however,  it  is 

,*.  \  established  that  the  action  cannot  be  maintained.  If  a  person  makes 
a  promise  to  another,  the  consideration  for  which  is  a  benefit  to  be 
conferred  by  the  promisee  on  a  third  person,  the  contract  confers  no 
right  on  the  third  person  to  sue.  In  a  leading  English  case  the  de- 
fendant had  made  a  promise  that,  in  consideration  of  the  promisee's 

"*»^"  V"T working  for  him,  he  would  pay  the  plaintiff  a  sum  of  money,  and  it 
was  held  that  the  plaintiff  could  not  recover  on  the  promise.  The 
members  of  the  court  stated  in  different  forms  the  same  reason  for 
'  their  decision.  One  said  that  the  declaration  did  not  "show  any  con- 
sideration for  the  promise  moving  from  the  plaintiff  to  defendant;" 
another,  that  "no  privity  is  shown  between  the  plaintiff  and  the  de- 
fendant;" another,  that  it  was  "consistent  with  the  matter  alleged  in 
the  declaration  that  the  plaintiff  may  have  been  entirely  ignorant  of 
the  arrangement"  between  the  promisee  and  the  defendant;  and  an- 
other, that  there  was  "no  promise  to  the  plaintiff  alleged."  ^^ 

Same — Exceptions. 

It  was  at  one  time  thought  in  England  that,  if  the  person  who  was 
to  take  a  benefit  under  the  contract  was  nearly  related  by  blood  to 
the  promisee,  a  right  of  action  would  vest  in  him;  ^*  but  such  a  doc- 

for  extinguishing  flres  is  not  liable  for  breach  of  the  contract  to  a  citizen 
"Whose  property  is  destroyed  because  of  such  breach,  see  Becker  v.  Water- 
works, 79  Iowa,  419,  44  N.  W.  694,  18  Am.  St.  Rep.  377;  Fitch  v.  Water 
Co.,  139  Ind.  214,  37  N.  E.  982,  47  Am.  St.  Rep.  258;  House  v.  Waterworks 
Co.,  88  Tex.  233,  31  S.  W.  179,  28  L.  R.  A.  532 ;  BOSTON  SAFE-DEPOSIT  & 
TRUST  CO.  V.  SALEM  WATER  CO.  (C.  C.)  94  Fed.  238.  Contra,  Paducah 
Lumber  Co.  v.  Paducah  Water  Supply  Co.,  89  Ky.  340,  12  S.  W.  554,  7  L.  R.  A. 
77,  25  Am.  St.  Rep.  536;  GORKELL  v.  WATER  SUPPLY  CO.,  124  N.  C.  328, 
32  S.  E.  720,  46  L.  R.  A.  513,  70  Am.  St  Rep.  598. 

12  Anson,  Cont  (4th  Ed.)  212  et  seq. 

13  PRICE  V.  EASTON,  4  Bam.  &  Adol.  433.     And  see  TWEDDLE  v.  AT- 
KINSON, 1  Best  &  S.  393. 

14  DUTTON  V.  POOLE,  2  Lev.  210;    BOURNE  v.  MASON,  1  Vent  Q. 


§g  191-192)  LIMITS   OF   CONTRACTUAL   RELATION.  353 

trine,  if  it  ever  really  existed,  has  been  overruled.  In  a  case  in  which 
the  respective  fathers  of  the  parties  to  a  marriage  had  entered  into  a 
contract  between  themselves  only  that  each  should  pay  a  sum  of  money 
to  the  husband,  and  expressly  stipulated  that  the  latter  should  have 
power  to  sue  therefor,  it  was  held  that  an  action  by  him  would  not  lie. 
"Some  of  the  old  decisions,"  it  was  said,  "appear  to  support  the  propo- 
sition that  a  stranger  to  the  consideration  of  a  contract  may  maintain 
an  action  upon  it  if  he  stands  in  such  a  near  relationship  to  the  party 
from  whom  the  consideration  proceeds  that  he  may  be  considered  a 
party  to  the  consideration.  *  *  *  It  is  now  established  that  no 
stranger  to  the  consideration  can  take  advantage  of  a  contract,  al- 
though made  for  his  benefit."  *' 

In  courts  of  equity,  language  has  been  used,  sometimes  very  ex- 
plicit, to  the  effect  that,  where  money  is  payable  to  one  person  for  the 
benefit  of  another,  the  latter  "can  claim  under  the  contract  as  if  it  had 
been  with  himself;"^®  but  the  later  cases  go  to  show  that  even  in 
equity  a  person  who  was  not  a  party  to  a  contract  cannot  acquire 
rights  thereunder  and  sue  thereon.^^  The  beneficiary  of  a  contract  ac- 
quires no  rights  ex  contractu,  even  in  equity.  If  the  contract  is  so 
framed  as  to  make  one  of  the  parties  trustee  for  a  third  person  for 
whose  benefit  it  is  made,  such  third  person  acquires  rights  by  virtue  of 
the  trust.  A  mere  contract,  however,  between  two  parties,  that  one 
of  them  shall  pay  money  to  a  third,  does  not  make  that  third  person  a 
cestui  que  trust.  There  must  be  some  declaration  of  trust  by  one  of 
the  contracting  parties  in  favor  of  the  third  person.^* 

Same — Massachusetts  Doctrine. 

The  English  doctrine  on  this  subject  is  also  recognized  by  the  Massa- 
chusetts court,  and  by  the  courts  of  some  of  the  other  states.^"     "The 

16  TWEDDLE  V.  ATKINSON,  1  Best  &  S.  393. 

16  Touche  V.  Warehousing  Co.,  6  Ch.  App.  671;  Spiller  v.  Skating  Rink, 
7  Cli.  Div.  3G8. 

17  Eley  V.  Assurance  Co.,  1  Exchi.  Div.  (Ct  App.)  88;  In  re  Empress  Eng. 
Co.,   16  Ch.   Div.  123. 

18  Two  English  cases,  decided  about  the  same  time,  are  cited  by  Anson  as 
illustrating  this  distinction.  In  one  it  was  held  that  a  clause  in  a  contract 
of  partnership  which  provided  for  the  payment  of  an  annuity,  for  five  years 
after  the  determination  of  the  partnership,  to  the  retiring  partner  or  his 
widow,  created  a  trust  in  favor  of  the  widow.  Murray  v.  Flavell,  25  Ch. 
Div.  89.  On  the  other  hand,  where  a  person  had  employed  the  plaintiff  in 
the  formation  of  the  defendant  company,  and  afterwards  agi-eed  with  the 
company  that  it  should  pay  the  plaintiff  for  his  services,  it  was  held  that 
the  agreement  gave  no  right  of  action  to  the  plaintiff.  In  re  Rotheram  Alum 
Co.,    2.5    Ch.    Div.    104. 

19  EXCHANGE  BANK  v.  RICE,  107  Mass.  37,  9  Am.  Rep.  1 ;  Rogers  v. 
Stone  Co.,  130  Mass.  5S1,  39  Am.  Rep.  47S;  Wheeler  v.  Stewart,  94  Mich. 
44.5,  54  N.  W.  172;  Linneman  v.  Moross'  Estate,  98  Mich.  178,  57  N.  W. 
103,  39  Am.  St.  Rep.  528;   Edwards  v.  Clement,  81  Mich.  513,  45  N.  W.  1107; 

Clabk  Cont.  (2d  Ed.)— 23 


554  OPERATION  OF  CONTRACT.  (Ch.  9 

general  rule  of  law,"  it  was  said  by  the  Massachusetts  court,  "is  that 
a  person  who  is  not  a  party  to  a  simple  contract,  and  from  whom  no 
consideration  moves,  cannot  sue  on  the  contract;  and,  consequently, 
that  a  promise  made  by  one  person  to  another  for  the  benefit  of  a  third 
person,  who  is  a  stranger  to  the  consideration,  will  not  support  an  ac- 
tion by  the  latter."  ^o 

Same — Exceptions  to  the  Massachusetts  Doctrine. 

There  is  no  doubt  that  in  this  country  courts  of  equity  recognize 
the  apparent  exception  to  this  rule,  already  mentioned  in  the  case  of 
trusts ;  and  that  where  a  contract,  consisting  of  a  promise  for  the 
benefit  of  a  third  person,  is  so  framed  as  to  make  the  promisor  a  trustee 
for  such  third  person,  the  latter  may  sue  to  enforce  the  trust.^^ 

Pipp  V.  Reynolds,  20  Mich.  88;  Woodland  v.  Newhall's  Adm'r  (C.  C.)  31 
Fed.  434;  ADAMS  v.  KUEHN,  119  Pa.  76,  Vi  Atl.  1&4;  Wilbur  v.  Wilbur, 
17  R.  I.  295,  21  Atl.  497;  Baxter  v.  Camp,  71  Conn.  245,  41  Atl.  803,  42  L. 
K.  A.  514,  71  Am.  St.  Rep.  169;  Morgan  v.  Randolph  &  Clowes  Co.,  73  Conn. 
o96,  47  Atl.  658,  51  L.  R.  A.  653.  The  exceptions  to  the  rule  that  a  stranger 
to  a  contract  cannot  maintain  an  action  on  it  were  stated  by  the  supreme 
,  court  of  the  United  States  in  language  frequently  referred  to  by  that  court 
A^'ith  approval,  as  follows:  "There  are  confessedly  many  exceptions  to  it. 
One  of  them,  and  by  far  the  most  frequent  one,  is  the  case  where,  under  a 
contract  between  two  persons,  assets  have  come  to  the  promisor's  hands 
or  under  his  control  which  in  equity  belong  to  a  third  person.  In  such  a 
case  it  is  held  that  the  third  person  may  sue  in  his  own  name.  But  then 
the  suit  is  founded  rather  on  the  implied  undertaking  the  law  raises  from 
the  possession  of  the  assets  than  on  the  express  promise.  Another  exception 
is  where  the  plaintiff  is  the  beneliciary  solely  interested  in  the  promise,  as 
Tvhere  one  person  contracts  with  another  to  pay  money  or  deliver  some  val- 
uable thing  to  a  third.  But  where  a  debt  already  exists  from  one  person  to 
another,  a  promise  by  a  third  person  to  pay  such  debt  being  primarily  for  the 
benefit  of  the  original  debtor,  and  to  relieve  him  from  liability  to  pay  it 
(there  being  no  novation),  he  has  a  right  of  action  against  the  promisor  for 
his  own  indemnity;  and,  if  the  original  creditor  can  also  sue,  the  promisor 
would  be  liable  to  two  separate  actions,  and  therefore  the  rule  is  that  the 
original  creditor  cannot '  sue.  His  case  is  not  an  exception  from  the  gen- 
eral rule  that  privity  of  contract  is  required.  Tliere  are  some  other  excep- 
tions recognized,  but  they  are  unimportant  now."  Second  Nat.  Bank  v. 
Grand  Lodge,  98  U.  S.  123,  25  L.  Ed.  75.  See,  also,  Keller  v.  Ashford,  133 
U.  S.  610,  10  Sup.  Ct  494,  33  D.  Ed.  667;  Willard  v.  Wood,  135  U.  S.  309, 
10  Sup.  Ct.  831,  34  L.  Ed.  210;  Union  Mut.  Life  Ins.  Co.  v.  Hanford,  143 
U.  S.  187,  12  Sup.  Ct.  437,  36  L.  Ed.  118;  Johns  v.  Wilson,  180  U.  S.  440, 
21  Sup.  Ct.  445,  45  L.  Ed.  613.  The  question  whether  the  remedy  of  the 
mortgagee  against  a  grantor  who  has  assumed  the  mortgage  is  in  law  in 
his  own  right,  or  in  equity  and  in  the  right  of  the  mortgagor  only,  is  to  be 
determined  by  the  law  of  the  place  where  the  suit  is  brought.  Willard  v. 
Wood,  supra;  Union  Mut  Life  Ins.  Co.  v.  Hanford,  supra;  Johns  v.  Wilson, 
supra.     See,  also,  Adams  v.  Shirk.  105  Fed.  659,  44  C.  C.  A.  653. 

20  EXCHANGE  BANK  v.  RICE,  107  Mass.  37,  9  Am.  Rep.  1. 

21  Union  Pac.  R.  Co.  v.  Durant,  95  U.  S.  576,  24  L.  Ed.  391;  Chace  v. 
Chapin,  130  Mass.  128;    Preachers'  Aid  Soc.  v.  England,  106  111,  125;    Mory 


§§  191-192)  LIMITS    OF   CONTRACTUAL   RELATION.  355 

In  addition  to  this,  there  is  another  apparent  exception.  This  excep- 
tion is  in  cases  where,  under  a  contract  in  which  a  promise  is  made 
for  the  benefit  of  a  third  person,  assets  come  to  the  promisor's  hands, 
or  under  his  control,  which  in  equity  belong  to  the  third  person;  or, 
as  it  has  been  expressed,  "those  cases  in  which  the  defendant  has  in  his 
hands  money  which  in  equity  and  good  conscience  belongs  to  the  plain- 
tiff, as  where  one  person  receives  from  another  money  or  property  as  a 
fund  from  which  certain  creditors  of  the  depositor  are  to  be  paid,  and 
promises,  either  expressly  or  by  implication  from  his  acceptance  of  the 
money  or  property  without  objection  to  the  terms  on  which  it  is  de- 
livered to  him,  to  pay  such  creditors."  ^^  In  such  cases  the  third  per- 
son may  sue  the  promisor  in  his  own  name.  The  rights  of  the  third 
person  are  not  conferred  upon  him  by  the  contract  between  the  prom- 
isor and  promisee,  but  arise  out  of  a  contract  crea'ted  by  law,  or  quasi 
contract,  between  the  promisor  and  the  third  person. ^^ 

The  exception  formerly  recognized  in  England,  but  since  overruled 
there,  to  the  eflfect  that,  if  a  third  person  for  whose  benefit  a  contract 
is  made  is  nearly  related  by  blood  to  the  promisee,  a  right  of  action  on 
the  promise  vests  in  him,  has  been  recognized  in  this  country,^*  but 
some  of  the  courts  have  refused  to  recognize  it.^^  Even  in  Massa- 
chusetts, where  it  has  been  directly  held,  the  court  has  since  expressed 
a  doubt  on  the  question,  even  if  it  has  not  expressly  held  the  contrary »^®^^  -V" 

Same— The  New  York  Doctrine.  ^"^  ^'^^^^^^"'C^^^^^  -"        r'^' • 
In  New  York,  and  in  most  of  the  other  states,  the  courts  have  re-  c^  -^ 
fused  to  recognize  the  doctrine  that  a  person  for  whose  benefit  a  prom^i 
ise  is  made  cannot  sue  the  promisor  unless  he  was  a  party  to  the  con-., 
tract.     In  a  leading  New  York  case  a  debtor  of  the  plaintiff  had  loaned 
money  to  the  defendant,  and  the  defendant  had  promised  him  to  pay**    ,^, 
the  plaintiff.     The  plaintiff  was  not  a  party  to  the  contract,  but  it  was'^Vl  'j» 

X.  Michael,  18  Md.  227;    Harrisbui-g  Bank  v.  Tyler,  3  Watts  &  S.  (Pa.)  373./^-  '-^ 
And  see  Allen  v.  Witbrow,  110  U.  S.  119,  3  Sup.  Ct.  517,  28  L.  Ed.  90.  '"^ 

2  2  EXCHANGE  BANK  v.  RICE,  107  Mass.  37,  9  Am.  Rep.  1. 

2  3  Carnegie  v.  Morrison,  2  Mete.  (Mass.)  381;  Putnam  v.  Field,  103  Mass. 
."".56;  Spencer  v.  Towles,  18  Mich.  9;  Grim  v.  Iron  Co.,  115  Pa.  611,  8  Atl. 
595;  Hosford  v.  Kanouse,  45  Mich.  620,  8  N.  W.  567;  Second  Nat.  Bank 
V.  Grand  Lodge,  98  U.  S.  123,  25  L.  Ed.  75;  Hostetter  v.  Hollinger,  117  Pa. 
606,  12  Atl.  741;  O'Neal  v.  Board,  27  Md.  227;  Wood  v.  Moriarty,  15  R.  I. 
518,  9  Atl.  427;  Lewis  v.  Sawyer,  44  Me.  332;  Keene  v.  Sage,  75  Me.  138; 
Taylor  t.  Taylor,  20  111.  650. 

24  Felton  V.  Dickinson,  10  Mass.  287 ;  Benge  v.  Hiatt's  Adm'r,  82  Ky.  666,  56 
Am.  Rep.  912.  See,  also,  BUCHANAN  v.  TILDEN,  158  N.  Y.  109,  52  N.  E. 
724,  44  L.  R.  A.  170,  70  Am.  St.  Rep.  454;  Everdell  v.  Hill,  27  Misc.  Rep. 
285,  58  N.  Y.   Supp.  447. 

25  Wilbur  V.  Wilbur,  17  R.  I.  295,  21  Atl.  497;  Linneman  v.  Moross'  Estate, 
98  Mich.  178,  57  N.  W.  103,  39  Am.  St.  Rep.  528. 

2  6  EXCHANGE  BANK  v.  RICE,  107  Mass.  37,  9  Am.  Rep.  1;  MARSTON 
V.  BIGELOW,  150  Mass.  53,  22  N.  E.  71,  5  L.  R.  A.  43. 


356    '       ;      /^'^-^  •'^  OPERATION -OF  CONTRACT.    •     >r^  /  ■      ,  (Ch.  9. 

held  by  four  of  the  seven  judges  that  he  could  sue  on  the  promise,  as  it 
was  considered  settled  in  that  state  that,  where  a  promise  is  "made 
to  one  for  the  benefit  of  another,  he  for  whose  benefit  it  is  made  may 
bring  an  action  for  its  breach."  *''  In  many  cases  the  rule  has  been  de- 
clared broadly  as  thus  stated.^' 

According  to  the  decisions  in  New  York  and  many  other  states, 
however,  there  must  be  something  more  than  a  mere  promise  for  the 
benefit  of  the  third  person.  The  promise  must  be  for  his  benefit,^ ^  and 
there  must  be  between  the  promisee  and  the  third  person  seeking  to  en- 
force the  promise  the  relation  of  debtor  and  creditor,  or  some  such 
relation  as  makes  the  performance  of  the  promise  a  satisfaction  of 
some  legal  or  equitable  duty  owing  by  the  promisee  to  such  third  per- 
son.*"    "It  is  not  sufficient  that  the  performance  of  the  promise  may 

^  ^"t^T  LAWRENCE  v.  FOX,  20  N.  Y.  268/\  See,  also,  Schermerhorn  v.  Vander- 
heyden,  1  Jolius.   140,  3  Am.  Dec.  304;    TODD  v.  WEBER,  95  N.   Y.   181, 
47  Am.    Rep.  20;    Stewart  v.  Trustees,   2  Denio,   403;    GIFFORD   v.    COR- 
Jt^>^'   RIGAN,  117  N.  Y.  257.  22  N.  E.  75G,  6  L.  R.  A.  610,  15  Am.  St.  Rep.  508. 

2  8  BASSETT  V.  HUGHES,  43  Wis.  319;  Bristow  v.  Lane,  21  111.  194;  Bay 
V.  Williams,  112  111.  91,  54  Am.  Rep.  209;  Mason  v.  Hall,  30  Ala.  599;  Brice 
V.  King,  1  Head  (Tenn.)  152;  WOOD  v.  MORIARTY,  15  R.  I.  518,  9  Atl. 
427;  Small  v.  Schaefer,  24  Md.  143;  BOHANAN  v.  POPE,  42  Me.  93;  Cole- 
man V.  Whitney,  62  Vt.  123,  20  Atl.  322,  9  L.  R.  A.  517;  Kaufman  v.  Bank, 
31  Neb.  661,  48  N.  W.  738;  Hendrick  v,  Lindsay,  93  U.  S.  143,  23  L.  Ed.  855; 
Flint  V.  Cadenasso,  64  Oal.  83,  28  Pac.  62;  Hecbt  v.  Caughron,  46  Ark.  135; 
.Tones  v.  Thomas,  21  Grat.  (Va.)  96;  Robbins  v.  Ayres,  10  Mo.  538,  47  Am. 
Dec.  125;  WHITEHEAD  v.  BURGESS,  61  N.  J.  Law,  75,  38  Atl.  802;  Enos 
V.  Sanger,  96  Wis.  150,  70  N.  W.  1069,  37  L.  R.  A.  862,  65  Am.  St.  Rep.  3^; 
Marble  Sav.  Bank  v.  Mesarvey,  101  Iowa,  285,  70  N.  W.  198;  Ingram  v.  In- 
gram, 172  111.  287,  50  N.  E.  198;  Rohman  v.  Gaiser.  53  Neb.  474,  73  N.  W. 
!)23;  Ransdel  v.  Moore,  153  Ind.  393,  53  N.  E.  767,  .53  L.  R.  A.  753;  GORRELL 
V.  WATER  SUPPLY  CO.,  124  N.  C.  328,  32  S.  E.  720,  46  L.  R.  A.  513.  70 
Am.  St.  Rep.  598;  Ferris  v.  Brewing  Co.,  155  Ind.  539,  58  N.  E.  701;  Elmer 
V.  Loper,  66  N.  J.  Law,  50,  48  Atl.  550.  Cf.  Electric  Appliance  Co.  v.  Guar- 
anty Co.,  110  Wis.  434,  85  N.  W.  &48,  53  L.  R.  A.  609.  That  the  person  for 
whose  benefit  a  promise  is  made  may  sue  does  not  prevent  the  promisee 
from  also  suing.  Steene  v.  Aylesworth,  18  Conn.  244;  Merriam  v.  Lumber 
Co.,  23  Minn.  314.     But  see  Seigman  v.  Hoffacker,  57  Md.  321. 

2  9  Simson  v.  Brown,  68  N.  Y.  355;  WHEAT  v.  RICE,  97  N.  Y.  296;  Austin 
V.  Seligman  (C.  C.)  18  Fed.  519;  Say  ward  v.  Dexter,  Horton  &  Co.,  72  Fed. 
758,  19  C.  C.  A.  176;  American  Exch.  Nat  Bank  v.  Railroad  Co.  (C.  C.)  76 
Fed.  130 ;  Greenwood  v.  Sheldon,  31  Minn.  254,  17  N.  W.  478 ;  Wright  v.  Terry, 
23  Fla.  160,  2  South.  6;  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  398.  59  Am. 
Rep.  541 ;  Chung  Kee  v.  Davidson,  73  Cal.  522,  15  Pac.  100 ;  Crandall  v.  Payne, 
154  111.  627,  39  N.  E.  601;  Walsh  v.  Featherstone,  67  Minn.  103,  69  N.  W. 
811;  School  Dist.  of  Beatrice  v.  Thomas,  51  Neb.  740,  71  N.  W.  731;  Ger- 
man State  Bank  v.  Light  Co.,  104  Iowa,  717,  74  N.  W.  685;  Washburn  v. 
Investment  Co.,  26  Or.  436,  38  Pac.  620;  Newberry  Land  Co.  v.  Newberry, 
95  Va.  119,  27  S.  E.  899;  Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27,  44  S.  W. 
218;    Rowe  v.  Moon,  115  Wis.  566,  92  N.  W.  263. 

so  DURNHERR  v.  RAU,  135  N.  Y.  219,  32  N.  E.  49;  WHEAT  v.  RICE, 
97  N.  Y.  302;    LorilUird  v.  Clyde,   122  N.  Y.  498,  25  N.  E.  917,  10  L.  R.  A. 


§§  191-192)  LIMITS   OF   CONTRACTUAL   RELATION.  357 

benefit  the  third  person.  It  must  have  been  entered  into  for  his  bene- 
fit, or  at  least  such  benefit  must  be  the  direct  result  of  performance, 
and  so  within  the  contemplation  of  the  parties ;  and,  in  addition,  the 
promisee  must  have  a  legal  interest  that  the  promise  be  performed  in 
favor  of  the  party  claiming  performance."  *^ 

Thus,  where  a  mortgagor  conveys  the  mortgaged  premises  to  a 
purchaser,  who  in  his  deed  assumes  and  agrees  to  pay  the  mortgage,  it 
is  generally  held  that  the  mortgagee  may  maintain  an  action  against 
the  grantee  upon  the  covenant  to  pay;  ^^  but  if  the  grantor  is  not  per- 
sonally bound  to  pay  a  mortgage  upon  the  granted  premises,  as  where 
he  has  purchased  subject  to  the  mortgage  without  assuming  it,  his 
grantee  does  not  by  assuming  the  mortgage  become  personally  liable 
to  the  mortgagee. ^^  It  is  very  generally  held  that  the  promisee  can 
release  the  promisor  from  his  obligation  before  the  third  person  for 
whose  benefit  the  promise  was  made  has  assented  to  and  adopted  it,^* 
but  not  afterwards.^" 

113;  Townsend  v.  Rackham,  143  N.  Y.  516.  38  N.  E.  731  (but  see  BUCHANAN 
V.  TILDEN,  158  N.  Y.  109,  52  N.  B.  72A,  44  L.  R.  A.  170,  70  Am.  St.  Rep. 
454);  Jefferson  v.  Asch,  53  Minn.  446,  55  N.  W.  604.  25  L.  R.  A.  257,  39  Am. 
St.  Rep.  618;  Union  Railway  Storage  Co.  y.  McDermott,  53  Minn.  407,  55 
N.  W.  606;  Tliomas  Mfg.  Co.  v.  Pratlier,  65  Ark.  27,  44  S.  W.  218.  And  see 
Coleman  v.  Whitney,  62  Vt.  123,  20  Atl.  322,  9  L.  R.  A.  517;  Lovejoy  v. 
Howe,  55  Minn.  353,  57  N.  W.  57;  BARNES  v.  INSURANCE  CO.,  56  Minn. 
38,  57  N.  W.  314,  45  Am.  St.  Rep.  438;  MontgomeiT  v.  Rief,  15  Utah,  495, 
50  Pac.  623;  German  State  Bank  v.  Light  Co.,  104  Iowa,  717,  74  N.  W.  685; 
Feldman  v.  McGuire,  34  Or.  309,  55  Pac.  872;  Street  v.  Goodale,  77  Mo.  App. 
318;  Frerking  v.  Thomas,  64  Neb.  193,  89  N.  W.  1005. 
31  DURNHERR  v.  RAU,  135  N.  Y.  219,  32  N.  E.  49. 

81  DURNHERR  v.  RAU,  135  N.  Y.  219,  32  N.  E.  49. 

82  Bmr  V.  Beers,  24  N.  Y.  178,  80  Am.  Dec.  327;  BAT  v.  WILLIAMS, 
112  111.  91,  54  Am.  Rep.  209;  Follansbee  v.  Johnson,  28  Minn.  311,  9  N.  W. 
882;  Flint  v.  Cadenasso,  64  Cal.  8S,  28  Pac.  62;  Stephenson  v.  Elliott  53 
Kan.  550,  36  Pac.  980;  Starbird  v.  Cranston,  24  Colo.  20,  48  Pac.  652;  Web- 
ster V.  Fleming,  178  111.  140,  52  N.  E.  975;  Kehoe  v.  Patton,  23  R,  I.  360, 
50  Atl.  655.     See  note  35,  infra. 

3  3  YROOMAN  v.  TURNER,  69  N.  Y.  280,  25  Am.  Rep.  195;  Brown  v.  Still- 
man,  43  Minn.  120,  45  N.  W.  2;  Nelson  v.  Rogers,  47  Minn.  103,  49  N.  W.  526; 
Young  Men's  Christian  Ass'n  v.  Croft,  34  Or.  106,  55  Pac.  489,  75  Am.  St. 
Rep.  568;  Eakin  v.  Shultz,  61  N.  J.  Eq.  156,  47  Atl.  274.  Contra,  Marble  Sav. 
Bank  v.  Mesai-vey,  101  Iowa,  285,  70  N.  W.  198;  Enos  v.  Sanger,  96  Wis. 
150,  70  N.  W.  1069,  37  L.  R.  A.  8G2,  65  Am.  St.  Rep.  38. 

34  KELLY  V.  ROBERTS,  40  N.  Y.  432;  Brewer  v.  Mauerer,  38  Ohio  St. 
543,  43  Am.  Rep.  436;  GUbert  v.  Sanderson,  56  Iowa,  349,  9  N.  W.  293;  Com- 
ley  V.  Dazian,  114  N.  Y.  161,  21  N.  E.  135. 

85BASSETT  V.  HUGHES,  43  Wis.  319;  GIFFORD  v.  CORRIGAN,  117 
N.  Y.  257,  22  N.  E.  75+!,  6  L.  R.  A.  610,  15  Am.  St.  Rep.  508;  New  York  Life 
Ins.  Co.  V.  Aitkin,  125  N.  Y.  660,  26  N.  E.  732;  Dodge's  Adm'r  v.  Moss,  82 
Ky.  441;  Etscheid  v.  Baker,  112  Wis.  129,  88  N.  W.  52.  And  see  Clark  v. 
Fisk,  9  Utah,  94,  33  Pac.  248.  But  some  courts  hold  that  tlie  promise  in- 
vests the  third  person  with  an  immediate  right,  which  the  promisee  cannot 


358  OPERATION  OF  CONTRACT.  (Ch.  9 

Same — Contracts  under  Seal. 

In  some  of  the  states  it  is  held  that  the  doctrine  allowing  suit  on  a 
contract  by  a  third  person  for  whose  benefit  it  is  made  applies  as  well 
to  covenants  or  promises  under  seal  as  to  simple  contracts.^*  In  other 
states  the  contrary  has  been  held,  on  the  ground  that  assumpsit  will 
not  lie  on  a  covenant  under  seal,  and  that  it  is  only  an  action  of 
assumpsit  that  will  lie  by  a  person  for  whose  benefit  a  promise  has 
been  made  to  another,^'^ 

Same — Statu tory  Bxcep tions 

By  statute,  in  many  of  the  states, — no  doubt  in  all  the  code  states, — 
it  is  expressly  provided  that  every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  in  certain  cases ;  and  under  such 
a  provision  it  has  been  held  that  the  person  for  whose  benefit  a  contract 
is  made  may  sue  thereon.^* 

Action  by  Third  Party  for  Many  Joint  Contractors. 

If  a  person  and  a  group  of  persons,  such  as  an  unincorporated  society 
should  enter  into  a  contract,  it  might  be  convenient  that  a  third  person 

release.  BAY  v.  WILLIAMS,  112  111.  91,  54  Am.  Rep.  209;  Starbird  v.  Cran- 
ston, 24  Colo.  20,  48  Pae.  652;  Tweeddale  v.  Tweeddale,  116  Wis.  517,  93  N.  W. 
440,  61  L.  R.  A.  509.  In  states  which  do  not  recognize  the  right  of  a  third 
person  for  whose  benefit  the  promise  is  made  to  enforce  the  contract,  he  maj' 
sometimes  avail  himself  of  the  promise  in  equity  by  subrogation  to  the  rights 
of  the  promisee,  as  in  the  case  of  a  mortgagee  where  a  grantee  of  a  mort- 
gii'^oi-  has  assumed  the  mortgage.  Such  is  the  rule  in  the  federal  courts. 
Keller  v.  Ashford,  133  U.  S.  610,  10  Sup.  Ct.  494,  33  L.  Ed.  667;  Knapp  v.  In- 
surance Co.,  83  Fed.  329,  29  C.  C.  A.  171,  40  L.  R.  A.  861.  Here  the  rights  of 
the  mortgagee  against  the  grantee  are  necessarily  defeated  if  the  grantor 
releases  the  grantee  from  his  covenant,  unless  the  release  is  in  fraud  of 
creditors.  See  Jones,  Mtg.  §  763;  Crowell  v.  Hospital,  27  N.  J.  Eq.  650; 
Youngs  V.  Public  Schools,  31  N.  J.  Eq.  290;  O'Neill  v.  Clark,  33  N.  J.  Eq. 
444. 

aaBASSETT  v.  HUGHES,  43  Wis.  319.  And  see  GIFFORD  v.  COR- 
RIGAN,  117  N.  Y.  257,  22  N.  E.  756,  6  L.  R.  A.  610,  15  Am.  St.  Rep.  508; 
Coster  V.  City  of  Albany,  43  N.  Y.  399;  Riordan  v.  Presbyterian  Church,  6 
Misc.  Rep.  84,  26  N.  Y.  Supp.  38;  Kimball  v.  Noyes,  17  Wis.  695;  McDowell 
V.  Leav,  35  Wis.  171;  Webster  v.  Fleming,  178  111.  140,  52  N.  E.  975;  of. 
Harms  v.  McCormick,  132  111.  104,  22  N.  E.  511. 

8  7  Hinkley  v.  Fowler,  15  Me.  285.  And  see  Cocks  v.  Varney,  45  N.  J.  Eq. 
72,  17  Atl.  108;  Seigman  v.  HofCacker,  57  Md.  321;  Robbins  v.  Ayres,  10  Mo. 
538,  47  Am.  Dec.  125 ;  Baldwin  v.  Emery,  89  Me.  496,  36  Atl.  994.  Cf.  Styles 
V.  F.  R.  Ix)ng  Co.,  67  N.  J.  Law,  413,  51  Atl.  710. 

88  Bliss,  Code  PI.  §  241;  Pomeroy,  Rem.  &  Rem.  R.  §  139.  See  Paducah 
Lumber  Co.  v.  Water  Supply  Co.,  89  Ky.  340,  12  S.  W.  554,  7  L.  R.  A.  77,  25 
Am.  St.  Rep.  536;  Ellis  v.  HaiTison,  104  Mo.  270,  16  S.  W.  198;  Stevens  v. 
Flannagan,  331  Ind.  122.  30  N.  E.  898;  Starbird  v.  Cranston,  24  Colo.  20,  48 
Pac.  652.  But  it  seems  that  a  third  person  must  establish  a  legal,  or  at 
least  an  equitable,  right  to  enforce  the  contract  independently  of  this  pro- 
vision. Ante,  p.  356,  and  cases  cited  in  note  30;  Anson,  Contr.  (8th  Ed.)  282, 
note  by  I'rof.  lluffcut.     In  some  stales  il  is  euuctod  that  if  u  promise  is  made 


§193)  ASSIGNMENT  OF  CONTRACTS.  359 

should  be  able  to  sue  on  behalf  of  the  group.  The  general  rule,  how- 
ever, that  a  contract  cannot  confer  rights  on  persons  not  parties  to  it, 
applies.  In  a  case  in  which  the  managers  of  an  association,  under 
powers  of  attorney  executed  by  the  members,  sued  upon  a  contract 
entered  into  by  the  association,  it  was  held  that  they  could  not  main- 
tain the  action,  "for  the  simple  reason  *  *  *  that  the  proper  per- 
son to  bring  an  action  is  the  person  whose  right  has  been  violated." 
"This  is  an  attempt,"  it  was  further  said,  "to  do  what  has  been  fre- 
quently, but  fruitlessly,  attempted  before,  viz.  to  get  rid  of  the  diffi- 
culty of  a  large  number  of  people  suing  in  their  own  names, — to  ap- 
point a  public  officer  without  obtaining  an  act  of  parliament  or  a 
charter  of  incorporation.^" 

In  some  of  the  states,  statutes  have  been  enacted  expressly  providing 
that  where  the  parties  are  very  numerous,  and  it  would  be  impracticable 
to  bring  them  all  before  the  court,  one  or  more  may  sue  or  defend  for 
the  benefit  of  all.*** 


ASSIGNMENT  OF  CONTRACTS— IN  GENERAI.. 

193.  Under  some  circumstances,  a  person  not  a  party  to  a  contract  may 
take  tlie  place  of  one  of  the  parties.  This  substitution  is  called 
assignment  of  the  contract.     It  may  be  either 

(a)  By  the  voluntary  act  of  the  parties,  or 

(b)  By  operation  of  law. 

We  have  just  seen  that,  subject  to  certain  exceptions,  a  contract 
cannot  affect  any  but  the  parties  to  it,  either  by  imposing  liabilities  or 
conferring  rights  on  them.  The  original  parties  to  a  contract,  how- 
ever, may,  under  certain  circumstances,  drop  out,  and  others  may 
take  their  places.  The  operation  by  which  this  change  in  the  con- 
tractual relation  is  effected  is  termed  an  assignment  of  the  contract. 

for  the  sole  benefit  of  a  third  person,  he  may  sue  in  his  own  name.  See  City  of 
Newport  News  v.  Potter,  122  Fed.  321,  58  C.  C.  A.  483. 

3  9  Gray  v.  Pearson,  L.  R.  5  C.  P.  568.     See  Anson,  Cont  (8th  Ed.)  230. 

40  Thames  v.  Jones,  97  N.  C.  121,  1  S.  E.  G92;  Gibson  v.  Ti'ust  Co..  58 
Hun,  443,  12  N.  Y.  Supp.  444;  Gieslie  v.  Anderson,  77  Cal.  247,  19  Pac.  421; 
Piatt  V.  Colvin,  50  Ohio  St.  703,  36  N.  E.  735;  Alexander  v.  Gish,  88  Ky. 
13,  9  S.  W.  801;   LUly  v.  Tobbein  (Mo.  Sup.)  13  S.  W.  1060. 


360  OPERATION   OF  CONTRACT.  (Ch.  9 

S ami:— ASSIGNMENT   OF   LIABILITIES   BY   ACT    OF   PARTIES. 

194.   A  person  caimot  assign  Ms  liabilities  under  a  contract. 

APPARENT  EXCEPTIONS— (a)    He  may  so  assig:n  witli  the  consent 
of  the  other  party  to  the  coutract. 

(b)  In  contracts  to  do  work  involving  no  personal  skill  or  personal 

qualifications,  the  party  may  have  the  ivork  done  by  another, 
but  he  remains  liable  if  it  is  not  properly  done. 

(c)  When  an  interest  in  land  is  transferred,   certain  liabilities   at- 

taching to  the  enjoyment  of  the  interest  pass  T^th  it. 

A  person  cannot  assign  his  liabilities  under  a  contract,  or,  to  put  the 
matter  from  the  point  of  view  of  the  other  party  to  the  contract,  a 
person  cannot  be  compelled  to  accept  performance  of  the  contract  from 
a  person  who  was  not  originally  a  party  to  it.  The  reason  for  the  rule 
lies  not  only  in  the  right  of  a  person  to  know  to  whom  he  is  to  look 
for  the  satisfaction  of  his  rights  under  a  contract,  but  in  his  right  "to 
the  benefit  which  he  contemplates  from  the  character,  credit,  and  sub- 
stance of  the  person  with  whom  he  contracts."  *^ 

The  rule  is  well  illustrated  by  a  case  in  which  one  Sharpe  let  a 
carriage  to  the  defendant,  at  a  yearly  rent,  for  five  years,  undertaking 
to  paint  it  every  year  and  keep  it  in  repair.  One  Robson  was,  in  fact, 
the  partner  of  Sharpe,  but  the  defendant  contracted  with  Sharpe  alone. 
After  three  years,  Sharpe  retired  from  business,  and  the  defendant 
was  informed  that  Robson  was  thenceforth  answerable  for  the  repair 
of  the  carriage  and  would  receive  the  rent.  The  defendant  refused 
to  accept  the  substitution,  and  it  was  held  that  he  could  not  be  sued 
upon  the  contract.  "The  defendant,"  it  was  said,  "may  have  been 
induced  to  enter  into  this  contract  by  reason  of  the  personal  confidence 
which  he  reposed  in  Sharpe.  *  *  *  The  latter,  therefore,  having 
said  it  was  impossible  for  him  to  perform  the  contract,  the  defendant 
had  a  right  to  object  to  its  being  performed  by  any  other  person,  and 
to  say  that  he  contracted  with  Sharpe  alone,  and  not  with  any  other 
person."  ^^ 

41  Humble  v.  Hunter,  12  Q.  B.  310.  And  see  ARKANSAS  VAL.  SMELT- 
ING CO.  V.  REJ^DEN  Mlx\.  CO.,  127  U.  S.  879,  8  Sup.  Ct.  1308,  32  L.  Ed.  246; 
Chapin  v.  Longwortb,  31  Ohio  St.  421;  Rappleye  v.  Seeder  Co.,  79  Iowa, 
220,  44  N.  W.  3(J3,  7  L.  R.  A.  139;  Bui-ger  v.  Rice,  3  Ind.  125;  Betlilebem  v. 
Annis,  40  N.  H.  34,  77  Am.  Dec.  700;  Griswold  v.  Railroad  Co.,  18  Mo.  App. 
52;  Lansden  v.  McCarthy,  45  Mo.  106;  Palo  Pinto  Co.  v.  Gano,  60  Tex.  249; 
Donelson  v.  Polk,  64  Md.  501,  2  Atl.  824;  Stewart  v.  Railroad  Co.,  102  N.  Y. 
601,  8  N.  E.  200,  55  Am.  Rep.  8H4;  Sprankle  v.  Tinilove,  22  Ind.  App.  577,  54 
N.  E.  401;    post,  p.  364,  and  cases  there  cited. 

42  Robson  V.  Drummond,  2  Bani.  &  Adol.  303.     Cf.  BRITISH  WAGGON 


§§  195-197)  ASSIGNMENT   OF   CONTRACTS.  361 

Exceptions  to  the  Rule. 

The  exceptions  to  this  rule  are  apparent  rather  than  real.  A  person 
may  assign  the  liabilities  imposed  upon  him  by  a  contract  which  he 
has  made  if  the  other  party  to  the  contract  consents.  This,  however, 
is,  in  effect,  a  new  contract.  It  is  a  rescission  by  agreement  of  the 
old  contract,  and  the  substitution  of  a  new  one,  in  which  the  same 
acts  are  to  be  performed  by  different  parties. 

Another  apparent  exception  is  in  this,  namely,  that  if  a  person  under- 
takes to  do  work  for  another  which  requires  no  special  skill,  and  he 
has  not  been  selected  for  the  work  with  reference  to  any  personal  quali- 
fications, he  may  have  the  work  done  by  some  equally  competent  third 
person.  This,  however,  is  not  an  assignment  of  his  liabilities,  for  he 
does  not  cease  to  be  liable  if  the  work  is  not  done  in  accordance  with 
the  contract.^^ 

The  third  apparent  exception  is  where  an  interest  in  land  is  trans- 
ferred.    In  such  case,  liabilities  attaching  to  the  enjoyment  of  the        I 
interest  pass  with  it.     This  will  be  discussed  presently.  ^       L^ 


f 


SAME— ASSIGNMENT   OF   RIGHTS   BY  ACT   OF  PARTIES. 

195.  AT  COMMON  LAAV.     Rights  arising  out  of  a  contract  cannot  be 

assigned  at  common  law  except'— 

EXCEPTIONS — (a)  By  an  agreement  between  tbe  original  parties 
and  tbe  intended  assignee,  'which  is  subject  to  all  the  rules  for 
the  formation  of  a  valid  contract. 

(b)  By  the  rules  of  the  law^  merchant  in  the  case  of  negotiable  in- 

struments. 

(c)  An  assignment  in  equity  is  so  far  recognized  at  common  law  as  to 

permit  the  assignee  to  sue  thereon  in  the  name  of  the  assignor 
or  his  representatives. 

196.  IN  EQUITY.     A  chose  in  action,  or  rights  under  a  contract,  may 

be  assigned  in  equity  -whenever  the  contract  is  not  for  exclu- 
sively personal  services,  and  does  not  involve  personal  credit, 
trust,  and  confidence.      But— 

COIVDITTONS — (a)  Notice  is  necessary  to  bind  the  debtor  or  person 
liable. 

(b)  The  assignee  tahes  subject  to  all  such  defenses  as  would  have  pre- 
vailed against   the   assignor. 

197.  BY   STATUTE.      There  are   statutes  in  most  states   allowing  the 

assignment  of  choses  in  action,  and  a  suit  at  l&xsr  by  the  assignee 
in  his  owia  name. 

CO.  V.  LEA,  5  Q.  B.  Div.  149.     And  see  Hand  v.  Evans  Marble  Co.,  88  Md. 
220,  40  Atl.  899. 

43  BRITISH   WAGGON    CO.    v.    LEA,    5    Q.    B.    Div.    149;     ROCHESTER 
IxA-NTERN  CO.  V.  PRESS  CO.,  135  N.  Y.  209,  31  N.  E.  1018. 


362  OPERATION  OF  CONTRACT.  (Cll.  9 

At  common  law,  apart  from  the  customs  of  the  law  merchant,  the 
rights  or  benefits  arising  out  of  a  contract,  or,  as  it  is  generally  termed, 
a  chose  in  action,  cannot  be  assigned  so  as  to  entitle  the  assignee  to 
sue  upon  it  in  his  own  name.'**  This  is  a  settled  and  inflexible  rule, 
and  its  effect  cannot  be  avoided  by  stipulations  of  the  parties,  as  by 
an  express  provision  in  the  contract  to  the  effect  that  it  may  be  as- 
signed, provided,  of  course,  the  stipulation  does  not  render  the  contract 
a  negotiable  instrument,  and  so  bring  it  within  the  law  merchant.*^ 

As  will  be  seen,  however,  the  assignment  creates  rights  in  equity, 
and  the  common  law  so  far  takes  cognizance  of  these  equitable  rights 
as  to  permit  the  assignee  to  use  the  name  of  the  assignor,  or  his  rep- 
resentative if  the  assignor  be  dead,  as  trustee  for  the  assignee,  so  that 
he  may  sue  on  the  contract  in  their  name.  An  equitable  assignment 
of  a  chose  m  action  is  in  the  nature  of  a  declaration  of  trust  by  the 
party  having  the  legal  right,  and  an  agreement  on  his  part  to  permit 
the  assignee  to  make  use  of  his  name  to  enforce  it.*® 

Strictly  speaking,  the  only  mode  by  which  the  rights  under  a  contract 
can  be  really  transferred  at  law  is,  not  by  assignment  at  all,  but  by 
means  of  a  subst'^-iitpH  agrppinpni-  If  A.  owes  B.  $ioo,  and  B.  owes 
C.  $ioo,  it  may  be  agreed  between  all  three  that  A.  shall  pay  C.  in- 
stead of  paying  B.,  so  that  B.  thereby  terminates  his  legal  relations 
with  both  parties.  In  such  case  the  consideration  for  A.'s  promise 
is  the  discharge  of  B. ;  the  consideration  for  B.'s  discharge  of  A.  is 
the  extinguishment  of  his  debt  to  C. ;  the  consideration  for  C.'s  prom- 
ise is  the  substitution  of  A.'s  liability  for  that  of  B.  This  is  known 
as  a  "novation."*''  To  effect  such  a  change^ of  relations,  there  must 
be  ascertained  sums  due  from  A.  to  B.,  and  from  B.  to  C. ;  and  it  is 
further  essential  that  there  shall  be  a  definite  aoje^ment  between  the 
parties,  for  it  is  the  promise  of  each  which  is  the  consideration  for 
the  promise  of  the  others.     It  would  not  be  enough  for  A.  to  say  to  C, 

44  Leake,  Cont.  GOl;  Co.  Litt.  214a,  232b;  2  Bl.  Comm.  442;  Greenby  v. 
Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am.  Dec.  379;  Hay  v.  Green,  12  Gush.  (Mass.) 
282;  Hunt  v.  Mann,  132  Mass.  53;  GLENN  v.  MARBURY,  145  U.  S.  499, 
12  Sup.  Ct.  914,  36  L.  Ed.  TOO.  "The  origin  of  the  rule  was  attributed  by 
Coke  to  the  'wisdom  and  policy  of  the  founders  of  our  law'  in  discouraging 
maintenance  and  litigation;  but  there  can  be  little  or  no  doubt  that  it  was  in 
truth  a  logical  consequence  of  the  primitive  view  of  a  contract  as  creating 
a  strictly  personal  obligation  between  the  creditor  and  the  debtor."  Pol. 
Cont.  20G. 

4  5  Coolidge  V.  Ruggles,  15  Mass.  387;  Weidler  v.  Kauffman,  14  Ohio,  455. 
Legro  V.  Staples,  IG  Me.  252;  Little  v.  Bank,  2  Hill  (N.  Y.)  425,  7  Hill  (N.  Y.) 
359;    People  v.  Gray,  23  Cal.  125. 

46  Leake,  Cont.  002;  WELCH  v.  MANDEVILLE,  1  Wheat.  233,  4  L.  Ed. 
79;  Halloran  v.  Whitcomb,  43  Vt.  30G;  Fay  v.  Guynon,  131  Mass.  31;  Frear 
V.  Evertson,  20  Johns.  (N.  Y.)  142;  PARSONS  v.  WOODWARD,  2  Zab.  (N.  J.) 
19(j;   McWilliam  v.  Webb,  32  Iowa,  577;   Webb  v.  Steele,  13  N.  H.  230. 

4T   Post,  p.  422. 


§§  195-197)  ASSIGNMENT  OF   CONTRACTS.  3G3 

''I  will  pay  you  instead  of  B.,"  and  to  afterwards  suggest  the  arrange- 
ment to  B.,  and  receive  his  assent.*®  Nor  would  it  be  enough  for  B. 
to  authorize  A.  in  writing  to  pay  to  C,  and  for  A.  to  acknowledge 
the  j^aper  in  writing.*"  In  neither  of  these  cases  would  there  be  such 
an  agreement  between  all  three  persons  as  to  amount  to  a  discharge 
by  B.  of  the  debt  due  by  him  to  A.  There  would,  therefore,  be  no 
consideration  for  A.'s  promise  to  pay  C,  so  as  to  support  an  action 
by  C.  against  him.  In  an  action  under  the  circumstances  of  the  sec- 
ond case  mentioned  above  by  C.  against  A.  it  was  said :  "There  are 
two  legal  principles  which,  so  far  as  I  know,  have  never  been  departed 
from.  One  is  that,  at  common  law,  a  debt  cannot  be  assigned  so  as 
to  give  the  assignee  a  right  to  sue  for  it  in  his  own  name,  except  in 
the  case  of  a  negotiable  jiTstrument ;  and,  that  being  the  law,  it  is 
perfectly  clear  that  B.  could  not  assign  to  the  plaintiff  the  debt  due 
from  the  defendant  to  him.  *  *  *  f j-,g  other  principle  which 
would  be  infringed  by  allowing  this  action  to  be  maintained  is  the  rule 
of  law  that  a  bare  promise  cannot  be  the  foundation  of  an  action."  '^° 

Same — Recognition  of  Equitable  Assignment  in  Law. 

Courts  of  common  law  recognize  the  validity  of  equitable  assign- 
ments for  other  purposes  than  to  permit  the  assignee  to  sue  at  law  in 
the  name  of  the  assignor.  An  assignment  of  a  chose  in  action  has 
always  been  held  a  good  consideration  for  a  promise.®^  Thus,  the 
benefit  of  a  contract  may  be  sold,  and  the  assignment  of  the  contract 
forms  a  valuable  consideration  for  a  promise  to  pay  the  price,  which 
may  be  recovered  in  an  action  at  law.^"  The  forbearance  by  the  as- 
signee of  a  debt  to  sue  the  debtor  is  a  good  consideration  for  an  express 
promise  by  the  debtor  to  pay  the  assignee,  and  on  this  promise  the 
assignee  may  maintain  an  action  in  his  own  name.*^^  He  must  sue 
on  the  debtor's  promise  to  him,  and  not  on  the  promise  to  the  assignor 
assigned  to  him. 

Rule  in  Equity, 

Equity  permits  the  assignment  of  certain  contracts  subject  to  cer- 
tain conditions.  As  a  rule,  however,  the  assignee  of  a  chose  in  action 
must  seek  his  remedy  at  law,  by  an  action  in  the  name  of  his  assignor, 
and  cannot,  merely  because  his  interest  is  an  equitable  one,  bring  a 

4  8  Caxon  V.  Chadley,  3  Barn.  «fc  C.  591. 

4  9  LIVERSIDGE  v.  BROADBENT,  4  Hurl.  &  N.  603. 

60  LIVERSIDGE  v.  BROADBENT,  4  Hurl.  &  N.  003. 

61  Leake,  Cont.  G05;  Master  v.  Miller,  4  Term  R.  341;  Skinner  v.  Somes, 
14  Mass.  107. 

62  Price  V.  Seaman,  4  Barn.  &  C.  525. 

63  MORTON  V.  BURN,  7  Adol.  &  E.  19;  Penner  v.  Mears,  2  W.  Bl.  12G9; 
Skinner  v.  Somes,  14  jMass.  107;  Crocker  v.  Wliitney,  10  Mass.  310;  JESSEL 
V.  INSURANCE  CO.,  3  Hill  (N.  Y.)  88;  COMPTON  v.  JONES,  4  Cow.  (N.  Y.) 
13 ;   Onion  v.  Paul,  1  Har.  &  J.  (Md.)  114. 


364  OPERATION  OF  CONTRACT.  (Ch.  9 

suit  in  equity  for  the  recovery  of  his  demand.^*  "A  court  of  equity 
will  not  entertain  a  bill  by  the  assignee  of  a  strictly  legal  right,  merely 
because  he  cannot  bring  an  action  at  law  in  his  own  name,  nor  unless 
it  appears  that  the  assignor  prevents  and  prohibits  such  an  action  from 
being  brought  in  his  name,  or  that  an  action  so  brought  would  not 
afford  an  adequate  remedy  at  law."  ^^  When,  however,  a  suit  in 
equity  is  maintainable,  it  may  be  maintained  by  the  assignee  in  his 
own  name. 

As  we  shall  presently  see,  there  are  statutes  in  most  of  the  states 
authorizing  the  assignment  of  choses  in  action,  so  as  to  give  the 
assignee  a  right  to  sue  at  law  in  his  own  name.  Where  the  statute  is 
general,  or  does  not  provide  otherwise,  it  is  held  that  it  allows  such 
assignments  at  law  as  were  formerly  allowed  in  equity,  and  leaves 
them  subject  at  law  to  the  same  rules  as  governed  them  in  equity. 
What  we  shall  now  say,  therefore,  in  regard  to  assignments  in  equity, 
will  generally  apply  to  assignments  at  law  authorized  by  these  statutes. 

Same — What  is  Assignable. 

It  may  be  said  generally  that  anything  which  directly  orjndJregtly 
involves,  a  right  of  property  is  assignable,^®  with  the  exception  that 
rights  when  coupled  with  liabilities  under  an  executory  contract  for 
personal  services,  or  under  contracts  otherwise  involving  personal 
credit,._trust,  or  confidence  cannot  be  assigned. ^'^     Such  things  pasl  to 

B4  CARTER  V.  INSURANCE  CO.,  1  Johns.  Ch.  (N.  Y.)  463;  Hay  ward  v. 
Andrews,  lOG  U.  S.  672,  1  Sup.  Ct.  544,  27  L.  Ed.  271;  New  York  Guaranty 
&  Indemnity  Co.  v.  Water  Co.,  107  U.  S.  205,  2  Sup.  Ct.  279,  27  L.  Ed.  4Si; 
Adair  v.  Winchester,  7  Gill  &  J.  (Md.)  114;  SmUey  v.  Bell,  Mart.  &  Y.  (Tenn.) 
378,  17  Am.  Dec.  813;    Moseley  v.  Boush,  4  liand.  (Va.)  392. 

55  Walker  v.  Brooks,  125  Mass.  241.  See  Smith  v.  Bates  Machine  Co.,  182 
111.  160,  55  N.  E.  69. 

56  Mulhall  V.  Quinn,  1  Gray  (Mass.)  105,  61  Am.  Dec.  414;  Harbord  v. 
Cooper,  43  Minn.  466,  45  N.  AV.  860;  Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W. 
758;  Grant  v.  Ludlow,  8  Ohio  St.  1;  Burkett  v.  Moses,  11  Rich.  Law  (S.  C.) 
432;  I^uisville  R.  Co.  v.  Goodbar,  88  Ind.  213;  La  Rue  v.  Groezinger,  84  Cal. 
281,  24  Pac.  42,  45,  18  Am.  St.  Rep.  179;  Francisco  v.  Smith,  143  N.  Y.  488, 
38  N.  E.  980;  Up  River  Ice  Co.  v.  Denier,  114  Mich.  296,  72  N.  W.  157,  68 
Am.  St.  Rep.  480;  Fleekenstein  Bros.  Co.  v.  Fleekenstein  (N.  J.  Ch.)  53  Atl. 
1043. 

57  Robson  V.  Dnimmond,  2  Barn.  &  Adol.  303;  BRITISH  WAGGON  CO. 
V.  LEA,  5  Q.  B.  Div.  149;  Jaeger's  Sanitary  Woolen  Supply  Co.  v.  Walker, 
77  L.  T.  (N.  S.)  180;  Bethlehem  v.  Annis,  40  N.  H.  34.  77  Am.  Dec.  700; 
Rappleye  v.  Seeder  Co.,  79  Iowa,  220,  44  N.  W.  363,  7  L.  R.  A.  139 ;  Sloan  v. 
Williams,  138  HI.  43,  27  N.  E.  531,  12  L.  R.  A.  496;  Joslyn  v.  Parlin,  54  Vt, 
670;  Chapin  v.  Longworth,  31  Ohio  St.  421;  DEVLIN  v.  CITY  OF  NEW 
YORK.  63  N.  Y.  8;  Hardy  Implement  Co.  v.  South  Bend  Iron  Works,  129 
Mo.  222,  31  S.  W.  599;  Edison  v.  Balka,  111  Mich.  235,  69  N.  W.  499;  Eastern 
Advertising  Co.  v.  McGow,  89  Md.  72,  42  Atl.  923;  Zetterlund  v.  Texas  Land 
&  Coal  Co.,  55  Neb.  3.55,  75  N.  W.  860;  Campbell  v.  Board  of  Com'rs,  64  Kan. 
376,  67  Pac.  S66.    A  contract  by  a  publisher  with  an  author  to  publish  a 


§§  195-197)  ASSIGNMENT   OF   CONTRACTS.  305 

the  personal  representatives  of  the  party  Hable  or  entitled,  and,  as  we 
shall  see,  are  thus  assigned  by  operation  of  law ;  and  it  has  been  said 
that  "the  power  to  assign  and  to  transmit  to  personal  representatives 
are  convertible  propositions."  "^^  A  person  who  has  made  a  contract 
to  render  personal  services  cannot  assign  his  right  to  render  such  serv- 
ices, but  he  can  assign  his  right  to  receive  pay  for  them  when  ren- 
dered by  him ;  and  so,  it  seems,  a  man  can  assign  the  money  to  become 
due  under  any  contract. ° ° 

work  has  been  held  not  assignable  by  the  publisher  without  the  author's 
consent,  because  of  the  personal  trust  placed  in  the  publisher  by  the  author. 
Stevens  v.  Benuing,  1  Kay  &  J.  168;  Gibson  v.  Carruthers,  8  Mees.  &  W. 
321,  at  page  343.  And  see  Griffith  v.  Tower  Pub.  Co.  [1897]  1  Ch.  21.  A 
contract  for  the  sale  of  goods  on  credit  cannot  be  assigned  by  the  vendee  with- 
out the  vendor's  consent.  ARKANSAS  VALLEY  SMELTING  CO.  v.  BELDEN 
MIN.  CO.,  127  U.  S.  379,  8  Sup.  Ct.  1308,  32  L.  Ed.  MG.  "When  rights  arising 
out  of  contract  are  coupled  with  obligations  to  be  performed  by  the  contractor, 
and  involve  such  a  relation  of  personal  confidence  that  it  must  have  been  in- 
tended that  the  rights  should  be  exercised,  and  the  obligations  performed,  by 
liim  alone,  the  couti'act,  including  both  his  rights  and  his  obligations,  cannot  be 
assigned  without  the  consent  of  the  other  party  to  the  original  contract." 
Board  of  Com'rs  of  Delaware  County  v.  Diebold  Safe  &  Lock  Co.,  133  U.  S. 
473,  10  Sup.  Ct.  399,  33  L.  Ed.  G74,  per  Gray,  J.  And  see  Burck  v.  Taylor, 
152  U.  S.  634,  12  Sup.  Ct  396,  38  L,  Ed.  578.  If  the  contract  prohibits  as- 
signment, an  assignee  succeeds  to  no  rights.  Mueller  v.  Northwestern  Uni- 
vei-sity,  195  111.  263,  63  N.  E.  110,  88  Am.  St.  Rep.  194. 

osZabriskie  v.  Smith,  13  N.  Y.  333;  Byxbie  v.  Wood,  24  N.  Y.  607;  DEV- 
LIN V.  CITY  OF  NEW  YORK,  63  N.  Y.  8;  Edmunds  v.  Illinois  Cent.  Ry. 
(C.  C.)  80  Fed.  78.  But  see  dictum  in  ARKANSAS  VALLEY  SMELTING  CO.  v. 
BELDEN  MIN.  CO.,  127  U.  S.  379,  8  Sup.  Ct.  1308,  32  L.  Ed.  246. 

69  DEVLIN  V.  CITY  OF  NEW  YORK,  63  N.  Y.  8;  Thayer  v.  Kelley,  28 
Vt.  19,  65  Am.  Dec.  220;  Weed  v.  Jewett,  2  Mete.  (Mass.)  608.  37  Am.  Dec. 
115;  Brackett  v.  Blalce,  7  Mete.  (Mass.)  335,  41  Am.  Dec.  442;  Emery  v. 
Lawrence,  8  Cush.  (Mass.)  151;  Garland  v.  Harrington,  51  N.  H.  409;  Shaffer 
V.  Mining  Co.,  55  Md.  74;  Hawley  v.  Bristol,  39  Conn.  26;  Greene  v.  Bar- 
tholomew, 34  Ind.  235;  Metcalf  v.  Kincaid,  87  Iowa,  443,  54  N.  W.  867,  43 
Am.  St.  Rep.  391;  Bates  v.  Lumber  Co.,  56  Minn.  14,  57  N.  W.  218;  Galey  v. 
Mellon,  172  Pa.  443,  33  Atl.  560;  Rodgers  v.  Torrent,  111  Mich.  680,  70  N.  W. 
335.  One  not  under  contract  or  existing  employment  cannot,  at  law,  make  a 
valid  assignment  of  wages  he  may  earn  in  the  future.  It  is  the  mere  possi- 
bility of  a  subsequent  acquisition  of  property,  which  is  too  uncertain  to  be 
the  basis  of  assignment.  Mulhall  v,  Quinn,  1  Gray  (Mass.)  105,  61  Am.  Dec. 
414;  Hamilton  v.  Rogers,  8  Md.  301;  Lehigh  Valley  R.  Co.  v.  Woodring,  116 
Pa.  513,  9  Atl.  58;  O'KEEFE  v.  ALLEN,  20  R.  I.  414,  39  Atl.  752,  78  Am. 
St.  Rep.  884.  A  thing  to  be  assignable,  at  law,  must  have  at  least  a  potential 
existence.  Thallhimer  v.  Brinckerhoff,  3  Cow.  (N.  Y.)  623.  15  Am,  Dec.  308; 
Moody  V.  Wright,  13  INIetc.  (Mass.)  17,  46  Am.  Dec.  706;  Hassie  v.  Congi-ega- 
tion,  35  Cal.  378;  Skipper  v.  Stokes,  42  Ala.  255,  94  Am.  Dec.  G46;  Needles 
V.  Needles,  7  Oliio  St.  432,  70  Am.  Dec.  85.  A  man  could  not  assign  money  to 
become  due  under  a  policy  not  yet  issued,  but,  after  issuance,  he  may  do  so 
before  any  loss.  Bergson  v.  Insurance  Co.,  38  Cal.  541.  Future  rent  under 
an  existing  lease.  Demarest  v.  WiHard,  S  Cow.  (N.  Y.)  206.  A  contract  be- 
tween an  insurance  company  and  its  agent,  by  which  the  latter  is  entitled  to 


366  OPERATION  OF,  CONTKACT.  ^    ,  _JLu     (Ch.  9 

Same — Partial  Assignment.  -'•  V     ; 

A  debtor  has  a  right  to  pay  his  debt  as  a  whole,  and  cannot  without 
his  consent  be  subjected  to  separate  actions  by  different  persons.  A 
creditor,  therefore,  canQOt,  at  law,  assign  a. part  of..his  claim  witbotit 
the  debtor's  consent.®"  It  is  generally  held,  however,  that  the  rule 
only  applies  where  the  assignment  is  sought  to  be  enforced  at  law  in 
the  name  of  the  assignor,  and  that  in  equity  a  partial  assignment  is 
good,  for  the  reason  that  in  equity  the  assignor,  as  well  as  the  debtor, 
may  be  joined,  and  the  whole  controversy  may  be  determined  in  one 
suit.®^ 

Same — Form  of  Assignment. 

No  particular  form  for  an  assignment  is  necessary,  unless  it  is  re- 
quired by  statute.  In  the  absence  of  a  statute  an  equitable  assignment 
may  be  made  without  any  deed  or  writing,  by  any  words  or  acts  show- 
receive  commissions  on  renewal  premiums,  to  accrue  annually  for  a  given 
period  in  the  future,  is  assignable  by  the  agent,  as  tbe  contract  is  not  de- 
pendent upon  any  contingency,  though  the  profits  arising  under  it  are. 
Knevals  v.  Blauvelt,  82  Me.  458,  19  Atl.  818.  But  equity  will  uphold  an  as- 
signment of  a  thing  resting  in  mere  possibility,  as  of  wages  to  be  earned  in 
the  future  not  under  an  existing  contract"  or  employment,  if  based  on  a 
valuable  consideration,  the  assignment  taking  effect  when  the  thing  comes 
into  existence.  FIELD  v.  MAYOR,  6  N.  Y.  179,  57  Am.  Dec.  435;  Edwards 
V.  Peterson,  80  Me.  3G7,  14  Atl.  936,  6  Am.  St.  Rep.  207;  Patterson  v.  Cald- 
well, 124  Pa.  455,  17  Atl.  18,  10  Am.  St.  Rep.  598. 

60  Mandeville  v.  Welch,  5  Wheat.  277,  5  L.  Ed.  87;  CARTER  v.  NICHOLS, 
58  Vt.  553,  5  Atl.  197;  Getchell  v.  Maney,  69  Me.  442  ;  Beardsley  v.  Morgner, 
73  Mo.  22;  Tripp  v.  Brownell,  12  Cush.  (Mass.)  at  page  382;  Gibson  v.  Cooke, 
20  Pick.  (Mass.)  15,  32  Am.  Dec.  194;  Milroy  v.  Iron  Co.,  43  Mich.  231,  5  N.  W. 
287;  Grain  v.  Aldrich,  38  Cal.  514,  99  Am.  Dec.  423;  Philadelphia's  Appeal,  86 
Pa.  179;  Dean  v.  St.  Paul  &  D.  R.,  53  Minn.  504,  55  N.  W.  628;  Kansas  City, 
M.  &  B.  R.  V.  Robertson,  109  Ala.  296,  19  South.  432;  Skobis  v.  Ferge,  102 
Wis.  122.  78  N.  W.  426;  Rivers  v.  A.  &  C.  Wright  &  Co.,  117  Ga.  81,  43  S.  E. 
499.  Where  a  contract  for  work  provides  for  payment  in  installments,  each 
installment  is  a  separate  demand,  and  may  be  assigned.  Adler  v.  Railroad 
Co.,  92  Mo.  2/42,  4  S.  W.  917. 

61  National  Exch.  Bank  v.  McLoon,  73  Me.  498;  Canty  v.  Latterner,  31 
:siinn.  239,  17  N.  W.  385;  First  Nat.  Bank  v.  Kimberlands,  16  W.  Va.  555; 
FIELD  V.  CITY  OF  NEW  YORK,  6  N.  Y.  179,  57  Am.  Dec.  435;  RISLEY  v. 
BANK,  83  N.  Y.  318,  at  page  329,  38  Am.  Rep.  421;  Daniels  v.  Meinhard,  53 
Ga.  359;  Fordyce  v.  Nelson,  91  Ind.  447;  Harris  Co.  v.  Campbell,  68  Tex. 
22,  3  S.  \V.  243,  2  Am.  St.  Rep.  467;  Etheridge  v.  Veraoy,  74  N.  C.  80O;  Bower 
V.  Stone  Co.,  30  N.  .7.  Eq.  171;  Coimty  of  Des  Moines  v.  Hiukley,  62  Iowa, 
637,  17  N.  W.  915;  Schilling  v.  Mullen,  55  Minn.  122,  56  N.  W.  586,  43  Am. 
St.  Rep.  475;  Warren  v.  Bank,  149  111.  9,  38  N.  E.  122,  25  L.  R.  A.  746; 
The  Elmbank  (D.  C.)  72  Fed.  610;  Chambers  v.  Lancaster,  160  N.  Y.  342,  54 
.\.  E.  707.  Contra,  Burnett  v.  Crandall,  63  Mo.  410;  Gardner  v.  Smith,  5 
Heisk.  (|Tenn.)  256.  Some  cases  maintain  that  consent  of  the  debtor  is  nec- 
essary even  in  eciuity.  Story,  J.,  La  Mandeville  v.  Welch,  5  Wheat.  277,  5 
L.  Ed.  87.  See  .TAMES  v.  NEWTON,  142  Mass.  366,  8  N.  E.  122,  5G  Am.  Rep. 
692;   Kingsbm-y  v.  Burrill,  151  Mass.  199,  24  N.  E.  36. 


§§  195-197)  ASSIGNMENT  OF  CONTRACTS.  307 

ing  a  clear  intention  to  assign. '^  An  order  made  by  a  creditor  on 
his  debtor  to  pa}'  the  debt  to  another  would  amount  to  an  equitable 
assignment  of  the  debt  to  the  person  in  whose  favor  it  is  made  or  to 
whom  it  is  given. ^^  An  assignment  may  be  conditional,  or  as_security, 
as  well  as  absolute.®* 

By  statute  in  some  of  the  states,  allowing  assignments  of  choses  in 
action  at  law,  and  suit  by  the  assignee  in  his  own  name,  it  is  required 
that  the  assignment  shall  be  in  writing,  signed  by  the  assignor  or  his 
agent.  If  it  is  not  in  such  a  form,  it  is  only  an  equitable  assign- 
ment, and  suit,  if  in  the  assignee's  name,  must  be  brought  in  equity,  or, 
if  suit  is  brought  at  law,  it  must  be  in  the  name  of  the  assignor.®* 

Same — Notice  of  Assignment. 

The  assignment  is  complete  as  betw££n-tl4e-asstffnof  and  the  assignee, 
or  those  standing  in  their  shoes  and  representing  them,  without  any 
notice  to  the  debtor  or  person  liable;  ®®  but  it  will  not  bind  the  debtor 
until  he  has  received  notice  of  it.®''     A  person  liable  under  a  contract 

8  2  Leake,  Cont.  G03;  ROW  y.  DAWSON,  1  Ves.  Sr.  331;  Heath  v.  Hall,  4 
Taunt.  32G:  Bower  v.  Stone  Co.,  30  N.  J.  Eq.  171;  Tingle  v.  Fisher,  20  W.  Va. 
497;  Shannon  v.  City  of  Hoboken,  37  N.  J.  Eq.  123;  Crane  v.  Gough,  4  Md. 
31(>;  Watson  v.  Bagaley,  12  Pa.  164,  51  Am.  Dec.  595;  Bank  of  Commerce 
V.  Bogy,  44  Mo.  13,  100  Am.  Dec.  247;  Tone  v.  Shankland,  110  Iowa,  525, 
81  N.  W.  789.  It  is  said  that  an  assignment  will  not  be  supported  unless  con- 
sideration has  been  given  by  the  assignee.  Anson,  Cont.  (8th  Ed.)  238.  But 
the  debtor  cannot  defend  on  the  ground  that  the  assignment  was  without  con- 
sideration. Coe  V.  Hinkley,  109  Mich.  008,  67  N.  W.  915;  Anderson  v. 
Reardon,  46  Minn.  185,  48  N.  W.  777;  Greig  v.  Riordan,  99  Cal.  316,  33  Pac. 
913;  Forsyth  v.  Rj^an  (Colo.  App.)  68  Pac.  1055;  Henderson  v.  Railway  Co. 
(Mich.)  91  N.  W.  630.  But  see  Waterman  v.  Men-ow,  94  Me.  237,  47  Atl. 
157.  Want  of  consideration  may  affect  rights  of  assignee  as  against  as- 
signor's creditors.     In  re  Doringh,  20  R.  I.  459,  40  Atl.  4. 

0  3  Story,  Eq.  Jur.  §  1044;  Mandeville  v.  Welch,  5  Wheat.  285,  5  L.  Ed.  87; 
Switzer  v.  Noffsinger,  82  Va.  518;    Wilson  v.  Carson,  12  Md.  54. 

64  Draper  v.  Fletcher,  26  Mich.  154;  Herbstreit  v.  Beckwith,  35  Mich.  93; 
Gill  V.  Weller,  52  Md.  8 ;  Hunting  v.  Emmart,  55  Md.  265.  An  assignment 
may  be  illegal  and  contrary  to  public  policy  (ante,  pp.  284,  299). 

6  5  Tradesmen's  Nat.  Bank  v.  Green,  57  Md.  602;  Mutual  Life  Ins.  Co.  v. 
Watson  (C.  C.)  30  Fed.  653  (Georgia  statute);  Chamborlin  v.  Gilman,  10  Colo. 
94,  14  Pac.  107. 

66  Muir  V.  Schenck,  3  Hill  (N.  Y.)  228.  38  Am.  Dec.  633;  Wood  v.  Parti-idge, 
11  Mass.  488;  Tliayer  v.  Daniels,  113  Mass.  129;  Burn  v.  Carvalho,  4  Mylne 
&  C.  690;  Bishop  v.  Holcomb,  10  Conn.  444:  Kafes  v.  McPherson  (N.  J.  Ch.) 
32  Atl.  710;    Marsh  v.  Garuey,  69  N.  H.  236,  45  Atl.  745. 

67  Stebbins  v.  Bruce,  80  Va.  389;  Fraley's  Appeal,  76  Pa.  42;  Bostwick 
V.  Bryant,  113  Ind.  448,  16  N.  E.  378;  Richards  v.  Griggs.  16  Mo.  416.  57  Am. 
Dec.  240;  Winben-y  v.  Koonce,  SS  N.  C.  351;  Porter  v.  Dunlap,  17  Ohio  St. 
591;  Shade  v.  Creviston,  93  Ind.  591.  In  case  of  bankruptcy  of  the  debtor 
before  notice,  it  would  pass  to  his  assignees  in  bankniptcy.  Ryall  v.  Rowles, 
1  Ves.  Sr.  348;  Dean  v.  James,  1  Adol.  &  E.  809.  Otherwise  where  notice  has 
been  received  before  banki-uptcy.  CRO^VFOOT  v.  GURNEY,  9  Bing.  372; 
Hutchinson  v,  Heyworth,  9  Adol.  &  E.  375. 


368  OPERATION  OF  CONTRACT.  (Ch.  9 

has  a  right  to  know  to  whom  his  liability  is  due,  and  therefore,  if  he 
receives  no  notice  that  it  is  due  to  another  than  the  party  with  whom 
he  originally  contracted,  and  pays  the  latter,  he  is  entitled  to  credit 
for  the  payment.®*  If,  for  instance,  a  mortgage  is  assigned  by  the 
mortgagee  without  notice  to  the  mortgagor,  and  the  mortgagor  after- 
wards pays  to  the  mortgagee,  the  payment  is  good  as  against  a  subse- 
quent claim  by  the  assignee.'®  The  reason  of  the  rule  has  been  thus 
stated:  "The  debtor  is  liable  at  law  to  the  assignor  of  the  debt,  and 
at  law  must  pay  the  assignor  if  the  assignor  sues  in  respect  of  it.  If 
so,  it  follows  that  he  may  pay  without  suit.  The  payment  of  the  debtor 
to  the  assignor  discharges  the  debt  at  law.  The  assignee  has  no 
legal  right,  and  can  only  sue  in  the  assignor's  name.  How  can  he 
sue  if  the  debt  has  been  paid?  If  a  court  of  equity  laid  down  the 
rule  that  the  debtor  is  a  trustee  for  the  assignee,  without  having  any 
notice  of  the  assignment,  it  would  be  impossible  for  a  debtor  safely 
to  pay  a  debt  to  his  creditor.  The  law  of  the  court  has  therefore 
required  notice  to  be  given  to  the  debtor  of  the  assignment  in  order 
to  perfect  the  title  of  the  assignee."  '^^ 

The  notice  need  not  be  given  in  any  formal  manner,  provided  it  is 
such  as  to  inform  the  debtor  of  the  assignment.''^  After  notice  of  the 
assignment,  he  cannot  refuse  to  be  bound  by  it;  ''^  and  a  payment  by 
him  to  the  original  debtor  will  not  discharge  the  debt.'^^ 

Same — Title  of  Assignee. 

A  person  cannot  acquire  title  to  a  chose  in  action  from  one  who 
has  himself  no  title  to  it.  And  if  a  man  takes  an  assignment  of  a 
chose  in  action,  he  takes  his  chance  as  to  the  exact  position  in  which  the 
party  giving  it  stands.     In  other  words,  the__assignee  of  a  chose  in 

68  Robinson  v.  Marshall,  11  Md.  1251. 

69  Williams  v.  Sorrell,  4  Ves.  389;    Van  Keuren  v.  Corkins,  66  N.  Y.  77. 
10  Stocks  V.  Dobson,  4  De  Gex,  M.  &  G.  15. 

71  Smith  V.  Smith,  2  Cromp.  &  M.  231;  Andei"son  v.  Van  Alen,  12  Johns. 
(N.  Y.)  343;  Meux  v.  Bell,  1  Hare,  73;  Edwards  v.  Scott,  1  Man.  &  G.  962; 
HEERMANS  v.  ELLSWORTH.  64  N.  Y.  159;  Tlbbits  v.  George,  5  Adol.  &  E. 
107;  Riley  v.  Taber,  9  Gray  (Mass.)  372;  Barron  v.  Porter.  44  Vt.  587;  Dale 
V.  Kimpton,  46  Vt.  76;  Bean  v.  Simpson,  16  Me.  49;  Kellogg  v.  Krauser,  14 
Serg.  &  R.  (Pa.)  137,  16  Am.  Dec.  480 ;  Guthrie  v.  Bashline,  25  Pa.  80 ;  Skobis 
V.  Ferge,  102  Wis.  122,  78  N.  W.  426. 

72  Tibbits  V.  George,  5  Adol.  &  E.  107;  BRILL  v.  TUTTLE,  81  N.  Y.  454, 
37  Am.  Rep.  515;  Switzer  v.  Noff singer,  82  Va.  518;  Savage  v.  Gregg,  150 
111.  161.  37  N.  E.  312. 

7  3  BRILL  V.  TUTl'LE,  81  N.  Y.  454,  37  Am.  Rep.  515;  BRICE  v.  BAN- 
NISTER, 3  Q.  B.  Div.  569;  Hall  v.  Insurance  Co.,  Ill  Mass.  53,  15  Am.  Rep. 
1;  Whitman  v.  Arms  Co.,  55  Conn.  247,  10  Atl.  571;  Shriner  v.  Lamborn,  12 
:Md.  170;  Kitzinger  y.  Beck,  4  Colo.  App.  206.  35  Pac.  278;  Schilling  v. 
Mullen,  55  Minn.  122,  56  N.  W.  586,  43  Am.  St.  Rep.  475;  Ferguson  v.  David- 
son, 147  Mo.  064,  49  S.  W.  859. 


§§  195-197)  ASSIGNMENT   OF   CONTRACTS.  369 

action  takes  it  subject  to  all  the  equities  of  the  debtor  against  the  as- 
signor existing;  at  the  time  he  rcccivcd'iTotice  of'the  assignment.''*  If 
the  debtor,  for  instance,  has  a  right  of  set-off  against  the  debt  at  the 
time  of  the  assignment,  he  may  enforce  the  right  as  against  the  as- 
signee; ^^  and,  as  we  have  already  seen,  he  may  enforce  a  right  of 
set-off  acquired  after  the  assignment,  but  before  he  received  notice  of 
it.'^^  Since,  however,  notice  thereof  completes  the  assignment  as 
against  the  debtor,  he  cannot  set  off  a  claim  afterwards  acquired.''^ 
So,  also,  if  a  party  is  induced  to  enter  into  a  contract  by  fraud,  and  the 
fraudulent  party  assigns  his  interest  in  the  contract,  theparty  defrauded 
may  have  the  contract^et  aside  4J^-equitv-ia^pite  ol  tlie^assi^nment.  and 

T4  Crouch  V.  Credit  Foncier,  L.  R.  8  Q.  B.  380;  Mangles  t.  Dixon,  3  H. 
L.  Cas.  702,  735;  Clute  v.  Robisou,  2  Jolins.  (N.  Y.)  595;  Littlefield  v.  Banli, 
97  N.  Y.  581;  CaUanan  v.  Edwards,  32  N.  Y.  483;  Kleeman  v.  Frisbie,  t33 
III.  482;  Buckner  v.  Smith,  1  Wash.  (Va.)  29G,  1  Am.  Dec.  463;  Kamena 
V.  Huelbig,  23  N.  J.  Eq.  78;  Spinning  v.  Sullivan,  48  Mich.  5,  11  N.  W.  758; 
Edson  v.  Gates,  44  Mich.  253,  6  N.  W.  G45;  Barney  v.  Gvover,  28  Vt.  391; 
Martin  v.  Richardson,  68  N.  C.  255;  Lane  v.  Smith,  103  Pa.  415;  Willis  v. 
Twambly,  13  Mass.  204;  Shade  v.  Crevislon,  93  Ind.  591;  Goldsborough  v. 
Cradle,  28  Md.  477;  Boardman  v.  Hayne,  29  Iowa,  339;  Russell  v.  Kirkbride, 
62  Tex.  455;  Hill  v.  McPherson,  15  Mo.  204,  55  Am.  Dec.  142;  Third  Nat. 
Bank  v.  Railroad  Co.,  114  Ga.  890,  40  S.  E.  1016.  If  the  debtor  does  any- 
thing to  mislead  the  assignee,  he  may  be  estopped;  and  in  this  way  the  as- 
signee may  get  a  better  title  than  his  assignor.  Holbrook  v.  Burt,  22  Pick. 
(Mass.)  546;  Kemp's  Ex'x  v.  McPherson,  7  Har.  &  J.  (Md.)  320;  Johnston 
V.  Insurance  Co.,  39  Md.  233;  Woodson  v.  Barrett,  2  Hen-  &  M.  (Va.)  80,  3 
Am.  Dec.  612;  Scott  v.  Sadler,  52  Pa.  211;  Buckner  v.  Smith,  1  Wash.  (Va.) 
296,  1  Am.  Dec.  463;  Boardman  v.  Hayne,  29  Iowa,  339.  Equities  which  may 
be  interposed  as  defenses  against  the  assignee  of  a  nonnegotlable  instrument 
are  only  such  as  are  inherent  in  the  contract  evidenced  by  the  instrument, 
and  which  exist  at _tiifiLJJJiifi_Q£_toe_  assignment.  Merchants' "Bank  v.  Weill, 
163  N.  Y.  486,  57  N.  E.  749,  79  Am.  St.  Rep.  605. 

7  5  Story,  Eq.  Jur.  §  1047;  Cavendish  v.  Greaves,  24  Beav.  163;  Massachu- 
setts Ix)an  &  Trust  Co.  v.  Welch,  47  Minn.  183.  49  N.  W.  740;  Greene  v. 
Hatch,  12  Mass.  195;  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  29  N.  E.  1006; 
Wood  V.  City  of  New  York,  73  N.  Y.  556;  McKenna  v.  Kirkwood,  50  Mich. 
544,  15  N.  W.  898;  First  Nat.  Bank  v.  Bynum,  84  N.  C.  24,  37  Am.  Rep. 
604;  Hooper  v.  Brundage.  22  Me.  460;  Hunt  v.  Shackleford,  55  Miss.  94; 
Sanborn  v.  Little,  3  N.  H.  539;  Littlefield  v.  Bank,  97  N.  Y.  581;  Jack  v. 
Davis,  29  Ga.  219.  An  unmatured  debt,  existing  at  the  time  of  the  assign- 
ment, cannot  be  set  off.  Roberts  v.  Carter,  38  N.  Y.  107;  Chambliss  v. 
Matthews,  57  Miss.  306;  Backus  v.  Spaulding,  129  Mass.  234;  Adams  v. 
Rodarmel,  19  Ind.  339;  Graham  v.  Tilford,  1  Mete.  (Ky.)  112;  Follett  v. 
Buyer,  4  Ohio  St  586. 

78  McCabe  v.  Gray,  20  Cal.  509;  Abshire  v.  Corey,  113  Ind.  484,  15  N.  E. 
685;  Faulknor  v.  Swart,  55  Hun,  261,  8  N.  Y.  Supp.  239;  Adams  v.  Leavens, 
20  Conn.  73. 

7T  Goodwin  v.  Cunningham,  12  Mass.  193;  St.  Andrew  v.  Manufacturing 
Co.,  134  Mass.  42;   Weeks  v.  Hunt,  6  Vt.  15;  Crayton  v.  Clark,  11  Ala.  787. 

Clabk  Cont.  (2d  Ed.)— 24 


370  OPERATION  OF  CONTRACT.  (Ch.  9 

this  though  the  assignee  may  have  paid  full  value,  and  may  have  been 
vi-holly  innocent. ''' 

It  seems  that  the  parties  to  a  contract  may_stipulate  that,  if  either 
assign  his  rights  under  it,  the  assignment  shall  be  "free  from  equities.;" 
that  is  to  say,  that  the  assignee  shall  not  be  liable  to  be  met  by  such 
defenses  as  would  have  been  valid  against  his  assignor.'" 

Same — Priority  between  Assignees. 

It  is  held  in  England  that  "equitable  titles  have  priority  according 
(to  the  priority  of  notice ;"  ^°  that  the  successive  assignees  of  an  obli- 
jgation  rank  as  to  their  title  according  to  the  dates  at  which  they  gave 
hotice  to  the  party  to  be  charged.  This  doctrine  is  also  recognized 
oy  the  courts  of  some  of  our  states,  and  by  the  supreme  court  of  the 
United  States.^ ^  The  courts  of  many  of  the  states,  on  the  other 
hand,  hold  that  equitable  titles  have  priority,  not  according  to  the 
priority  of  notice,  but  according  to_prlQri_ty— Jn  time  of  assignment, 
on  the  ground  that  as  between  assignor  and  assignee  the~~assignmcnt 
is  complete  without  any  notice  to  the  debtor,  and  that  a  purchaser 
of  a  chose  in  action  must  always  abide  by  the  case  of  the  person  from 
whom  he  buys.®^ 

Under  Statutes. 

In  most  of  the  states,  statutes  have  been  enacted  changing  the  com- 
mon-law rules  in  relation  to  assignments  of  choses  in  action.  These 
statutes  vary  somewhat,  so  that  it  would  be  impracticable  to  attempt 
to  set  them  out.  In  most  states  it  is  substantially  provided  that  the 
assignee  of -a  chose  may  sue.  the  debtor  in  his  o_w,n  name^in  the  same 
manner  as  the  assignor  might  have  done  before  the  assignment.  In 
some  states  the  same  result  is  accomplished  by  statutes  requiring  ac- 

7  8  Graham  v.  Johnson,  L.  B.  8  Eq.  38;  Holbrook  v.  Burt,  22  Pick-  (Mass.) 
546.     But  see  Bloomer  v.  Henderson,  8  Mich.  31)5,  77  Am.  Dec.  453. 

f  9  Ex  parte  Asiatic  Banking  Corp.,  2  Ch.  App.  397.  "It  is  questionable,  how- 
ever, whether  such  a  stipulation  would  protect  the  assignee  against  the 
effects  of  fraud,  or  any  vitiil  defect  in  the  formation  of  the  original  con- 
tract."    Anson,  Cont.  (8th  Ed.)  238. 

so  Stocks  V.  Dobson,  4  De  Gex,  M.  &  G.  15, 

81  Ward  V.  Morrison,  25  Vt.  593;  Murdoch  v.  Finney,  21  Mo.  138;  Clod- 
felter  v.  Cox,  1  Sneed  (Tenn.)  330,  60  Am.  Dec.  157;  White's  Heirs  v.  Pren- 
tiss" Heirs,  3  T.  B.  Mon.  (Ky.)  449;  Judson  v.  Corcoran,  17  How.  612,  15  U 
Ed.  331;  Spain  v.  Brent,  1  Wall.  624,  17  L.  Ed.  619;  Daclede  Bank  v.  Schuler, 
120  U.  S.  511,  7  Sup.  Ct.  644,  30  L.  Ed.  704;  In  re  Gillespie  (D.  C.)  15  Fed. 
734;  Methven  v.  Power  Co.,  66  Fed.  113,  13  C.  C.  A.  362;  Graham  Paper 
Co.  y.  Pembroke,  124  Cal,  117,  56  Pac.  627,  44  L.  R.  A.  632,  71  Am.  St  Bep. 
26. 

S2  Muir  V.  Schenck,  3  Hill  (N.  Y.)  228,  38  Am.  Dec.  633;  Thayer  v.  Daniels, 
113  Mass.  129;  Kamena  v.  Iluelbig,  23  N.  J.  Eq.  78;  Tingle  v.  Fisher,  20  W. 
Va.  497;  Nowby  v.  Hill,  2  Mete.  (Ky.)  530;  Ohio  Life  Ins.  &  Timst  Co.  v. 
Pt0.ss,  2  Md.  Ch.  25;  MacDonald  v.  Knooland,  5  Minn.  352  (Gil.  283j;  For- 
tunate V.  Patten,  147  N.  Y.  277,  41  N.  E.  572. 


§§  195-197)  ASSIGNMENT  OF   CONTRACTS.  371 

tions  to  be  brought  in  the  name  of  the  "real  party  in  interest."  It  may 
be  said  generally  that  the  effect  of  the  statutes  is  to  put  an  assignment 
of  a  chose  in  action  on  the  same  footing  at  law  as  in  equity.  What 
we  have  said,  therefore,  in  treating  of  assignments  in  equity,  generally 
applies  to  assignments  at  law  under  the  statutes.** 

Negotiable  I ustruments. 

It  remains  to  mention  a  class  of  promises  the  benefit  of  which  is 
transferabjfi,  under  the  law  merchant,  in  such  a  way  that  the  promise 
may  be  enforced  by  the  transferee  in  his  own  name,  without  noticg 
to  the  promisor,  and  under  certain  circumstances  without  risk  of  being- 
m^t  by  many  of  the  defenses  which  would  have  prevailed  as  agamst 
his  transferror.  These  contracts  are  called  "negotiable"  instrupients, 
for  the  reason  that  they  may  be  transferred  by  "negotiation"  as  dis- 
tinguished from  "assignment."  They  include  bills  of  exchange,  prom-\ 
issory  notes,  checks,  some  classes  of  corporate  bonds  for  the  payment  ) 
of  money,  and  some  other  instruments.  Most  of  these  instruments 
are  negotiable  bjv__the  custom  of  mprrliantR  recognized  by  the  courts. 
Some  instruments  are  negotiable  _by_statute.  Promissory  notes  were 
put  upon  the  same  footing  as  bills  of  exchange  by  the  statute  of  3  &  4 
Anne,  c.  9,  §§  1-3,  although  this  statute  is  to  be  regarded  as  only 
declaratory  of  the  law. 

Negotiation  means  transfer  in  the  form  and  manner  prescribed  by 
the  law  merchant.  If  the  instrument  is  payable  t reorder,  it  is  trans- 
ferable by  indorsement;  if  payable  to  bearer,  by  mere  delivery.^* 
The  usual  form  of  indorsement  is  the  signature  of  the  indorser,  with 
or  without  a  direction  to  pay  to  a  specified  indorsee  or  to  his  order. 
If  the  indorsee  is  specified,  the  indorsement  is  necessary  to  the  further 
negotiation  of  the  instrument;  but  if  the  indorsement  specifies  no  in- 
dorsee, the  instrument  becomes  in  effect  payable  to  bearer,  and  may 
be  further  negotiated  by  delivery.^ '^ 

The  effect  of  negotiation  is  (i)  to  transfer  tlie  legal  title  to  the 
transferee,  so  that  he  may  sue  upon  the  instrument  in  his  own  name ;  ** 
and  (2)  if  the  transferee  is  a  purchaser  for  value,  before  maturity  of 
the  instrument,  and  without  notice  of  facts  which  would  impeach 
its  validity  between  antecedent  parties,  he  may  enforce  payment,  not- 
withstanding defenses  (other  than  those  which  attach  to  the  instru- 
ment itself  and  are  good  against  all  persons)  which  would  have  been' 
good  against  his  transferror  or  other  prior  parties.®''     Notice  of  the 

88  Dakin  v.  Pomeroy,  9  Gill.  (Md.)  1;  Dooring  v.  Kenamoro,  86  Mo.  588; 
Strong  V.  Clem,  12  Ind.  37,  74  Am.  Dec.  200;  Jordan  v.  Thornton,  7  Ark,  224, 
44  Am.  Dec.  54G. 

84  Norton,  Bills  &  N.  (3d  Ed.)  200-20G. 

8  5  Norton,  Bills  &  N.  (3d  Ed.)  105-118. 

&«  Norton,  Bills  &  N.  (3d  Ed.)  207-215. 

ST  Norton,  Bills  &  N.  (3d  Ed.)  21U  et  seq. 


372  OPERATION  OF  CONTRACT.  (Cll.  9 

transfer  n^ed  not  be  given  to  the  party  liable.  Consideration  is  pre- 
sumed to  be  given  until  the  contrary  appears,  although  the  burden  of 
proof  may  be  changed  if  it  appears  that  there  was  fraud  or  illegality 
in  the  issue  or  subsequent  negotiation  of  the  instrument.®^ 

Negotiable  instruments  may  be  transferred  by  assignment  as  well 
as  by  negotiation,  but  in  such  case  only  the  e^jjitahle  as  distinguished 
from  the  legal  title  is  transferred,  and  the  incidents  of  the  transfer 
are  substantially  the  same  as  in  the  case  of  the  transfer  of  a  mere 
chose  in  action,  the  assignee  standing  in  no  better  position  than  his 
assignor."®  It  would  be  beyond  the  scope  of  this  book  to  go  further 
into  the  law  of  negotiable  instruments. 


SAME— ASSIGNMENT  BY  OPERATION  OF  LAW. 

198.  Rules  of  la\e  operate  to  transfer  rights  and  liabilities  arising 
out  of  a  contract,  under  certain  circumstances  and  to  a  certain 
extent,  in  the  follov^ing  cases: 

(a)  Upon  the  transfer  of  an  interest  in  land. 

(b)  Upon  a  ivoni.an's  marriage. 

(c)  By  death. 

(d)  By  bankruptcy. 

We  have  thus  far  dealt  with  the  manner  in  which  the  parties  to  a 
contract  may  by  their  own  acts  assign  to  others  the  benefits  or  liabili- 
ties of  the  contract.  It  remains  now  to  show  how  these  rights  and  lia- 
bilities may  pass  by  operation  of  law. 


SAME— ASSIGNMENT  OF  OBLIGATIONS  ON  TRANSFER   OF 

INTERESTS  IN  LAND. 

199.  If  a  person,  by  purchase  or  lease,  acquires  an  interest  in  land 
from  another,  on  terms  ^irhich  bind  them  by  contractual  obliga- 
tions in  respect  of  their  several  interests,  the  assignment  by 
either  party  of  his  interest  -will  operate  as  a  transfer  of  these 
obligations  to  the  assignee  as  follow^s: 
(a)    Covenants  affecting  leasehold  interests, 

(1)  If  they  touch  and  concern  the  thing  demised,  and  relate  to 
something  -nrhich  xtras  in  existence  at  the  time  of  the  lease, 
pass  to  the  assignee,  though  not  expressed  to  have  been 
made  with  the  lessee  "and  his  assigns." 

8  8  Norton,  Bills  &  N.  (3(1  Ed.)  327. 

8  9  Edge  V.  Buniford,  31  L.  J.  Ch.  805;  Ceutral  Trust  Co.  v.  Bank,  101  U. 
S.  G8,  25  L.  Ed.  87G;  Osgood's  Adm'i-s  v.  Artt  (G.  C.)  17  Fed.  575;  I^ncaster 
Nat.  Bank  v.  Taylor,  100  Mass.  18,  1  Am.  Rep.  71,  97  Am.  Dec.  70;  GOSHEN 
NAT.  BAxNK  v.  BINGHAM,  118  N.  Y.  34'J,  23  N.  E.  180,  7  L.  R.  A,  595,  IG 
Am.  St.  Rep.  705;  Norton,  Bills  iSc  N.  (3d  Ed.)  VM,  200. 


§  199)  ASSIGNMENT    OF    COXTKACTS.  373 

(2)  If  they  relate  to   something  not  in  existence  at  the  time   of 

the  lease,   they  pass   to    the    assignee,   if   expressed   as   nLEtde 
with  the  lessee  "and  assigns." 

(3)  In    no    case    do    merely  personal    or    collateral    covenants    be- 

tTpeen  the  landlord  and  lessee  pass  to  the  latter's  assignee. 

(4)  The  reversioner  or  landlord  does  not  at  common  law,  by  as- 

signing his  interest  in  the  land,  convey  his  rights  and  lia- 
bilities to  the  assignee,  but  this  is  very  generally  changed 
by  statute, 
(b)    Covenants  affecting  freehold  interests, 

(1)  If  made  to  the  owner  of  the  land,  and  for  his  benefit,  pass  to 

his    assignees,    provided   they  touch    and   concern   the   land, 
and  are  not  3tnerely  personal. 

(2)  If  made  by  the  oxsmer,  restricting  his  enjoyment  of  the  land,       ^^^  ^ 

they  do  not,  at  common  law,  bind  his  assignees,  except  in    '^  a  ^^ 
case  of  'well-know^n  interests,  such  as  easements,  recognized  _  i^  . 
by  laxe.      In  equity,  hoivever,  it  is  otherwise  in  case  of  cer-        _  ^_^^ 
tain  covenants  of  xphich  the  assignee  had  notice  at  the  time 
of  his  purchase. 80 

Covenants  Affecting  Leasehold  Interests. 

At  common  law,  r.nv(^nants  affecting  leasehold  Interests  are  said  to 
"run  with  the  land,  and  not  with  the  reversion;"  that  is  to  say,  they 
pass  upon  an  assignment  of  the  ]ease,  but  not  upon  an  assignment  or 
transfer  of  the  ce^ergisH.  If  a  lessee  assigns  his  lease,  the  assignee, 
in  certain  cases,  will  be  bound  to  the  landlord  by  the  same  liabilities, 
and  entitled  to  the  same  rights,  as  his  assignor.  The  extent  to  which 
this  is  so  may  be  stated  thus : 

(i)  Covenants  in  a  lease  which  "touch  and  concern  the  thing-  de- 
mised" ®^  pass  to  the  lessee's  assignee,  and  it  is  not  necessary  in  such 
case  that  the  covenants  be  expressed  to  have  been  made  with  the 
lessee  "and  his  assigns."  Of  this  class  are  covenants  to  repair,  or 
to  leave  in  good  repajr,  or  to  deal  with  the  land  in  any  specified  man- 
ner. Such  covenants  touch  and  concern  the  land,  which  is  the  thing 
demised.*' 

9  0  Following  substantially  Anson,  Cont.  (4th  Ed.)  232. 

01  As  to  the  meaning  of  this  term,  see  Masury  v.  South  worth,  9  Ohio  St. 
341;  Wiggins  Ferry  Co.  v.  Railroad  Co.,  94  111.  83;  Norman  v.  Wells.  17 
Wend.  (X.  Y.)  13U;  Peden  v.  Railway  Co.,  73  Iowa,  ;i28,  35  N.  W.  424,  5  Am. 
St.  Rep.  080;  Kettle  R.  R.  Co.  v.  Raihvay  Co.,  41  Minn.  401,  43  N.  W.  469,  0 
L.  R.  A.  Ill;  Noi-fleet  v.  Cromwell,  70  N.  C.  634,  16  Am.  Rep.  787;  Pittsburgh, 
Ft.  W.  &  C.  R.  Co.  T.  Reno,  123  111.  273,  14  N.  E.  195;  Lyford  v.  Railroad  Co., 
92  Cal.  93,  28  Pac.  103. 

0  2  Spencer's  Case,  1  Smith,  Lead.  Cas.  lOS,  and  cases  collected  in  note; 
Norman  v.  Wells,  17  Wend.  (N.  Y.)  136;  Suydam  v.  Jones,  10  Wend.  (N.  Y.) 
180,  25  Am.  Dec.  552 ;  Leppla  v.  Mackey,  31  Minn.  75,  16  N.  W.  470 ;  Donelson 
V.  Polk,  G4  Md.  .501,  2  Atl.  824;  Demarest  v.  Willard,  8  Cow.  (N.  Y.)  206;  Callan 
V.  McDaniel,  72  Ala.  96;  Post  v.  Kearney.  2  N.  Y.  394.  51  Am.  Dec.  303; 
Fitch  V.  Johnson,  104  111.  Ill;  Co  burn  v.  Goodall,  72  Cal.  498,  14  Pac.  190, 
1  Am.  St.  Rep.  75. 


374  OPERATION  OF  CONTRACT.  (Ch.  9 

(2)  Covenants  in  a  lease  which  touch  and  concern  the  thing  demised, 
but  relate  to  something  not  in  existence  at  the  time  of  the  lease,  pass 
to  the  lessee's  assignee  only  where  the  covenant  is  expressly  made 
with  the  lessee  "and  assigns."  '' 

(3)  In  no  case  does  the  assignee  of  a  lease  acquire  benefit  or  incur 
liability  from  merely  personal_qr  coljateral  ,covenants  made  between 
the  lessee  and  landlord!^  For  instance,  where  a  lessee  of  land  cove- 
nanted to  use  the  premises  as  a  schoolhouse,  and  the  lessor  covenanted 
not  to  build  or  keep  any  house  for  the  sale  of  intoxicating  liquor 
within  a  certain  distance  of  the  premises,  it  was  held  that  the  benefit  of 
the  lessor's  covenant  did  not  pass  to  the  assignee  of  the  lease."* 

At  common  law,  the  assignment  of  his  interest  by  the  reversioner  or 
landlord  does  not  convey  his  rights  and  liabilities  to  his  assignee.  The 
law  in  this  respect,  however,  was  changed  in  England  by  a  statute  in 
the  reign  of  Henry  VIII. ,®^  under  which  the  assignee_of^  the  reversion 
is  enabled  to  take  the  benefits  and  also  incurs  the  liabilities  of  cove- 
nants entered  into  with  his  assignor.  This  statute  is  recognized  as  a 
part  of  the  common  law  in  some  of  our  states,  while  in  others  similar 
statutes  have  been  enacted."®  The  rules  as  to  the  connection  of  the 
covenants  with  the  thing  demised  apply  to  such  as  run  with  the  rever- 
sion equally  with  those  that  run  with  the  land ;  that  is  to  say,  they  must 
"touch  and  concern  the  thing  demised,"  and  not  be  merely  personal  or 
collateral."^ 

8  3  MinshuU  v,  Oakes,  2  Hurl.  &  N.  80S;  Spencer's  Case,  1  Smith,  Lead. 
Cas.  168;  Hansen  v.  Meyer.  81  111.  321,  25  Am.  Rep.  282;  Newbm-g  Petroleum 
€0.  V.  Weare,  44  Ohio  St.  604,  9  N.  E.  845;  Bailey  v.  Richardson,  66  Cal.  416, 
5  Pac.  910;  Coffin  v.  Talman,  8  N.  Y.  465;  Tallman  v.  Coffin,  4  N.  Y.  134; 
Masury  v.  Southworth,  9  Ohio  St.  340;  Dorsey  v.  Railroad  Co.,  58  111.  65; 
Cronin  v.  Watkins.  1  Tenn.  Ch.  119;  Bream  v.  Dickersou,  2  Humph.  (Tenn.l 
126;    Hartung  v.  Witte,  59  Wis.  285,  18  N,  W.  175. 

0*  Thomas  v.  Haywood,  L.  R.  4  Exch.  311.  The  lessee  cannot,  by  as- 
signing the  lease,  release  himself  from  his  express  covenants — as  to  pay  rent. 
He  cannot  escape  this  liability  without  the  landlord's  consent,  and  the  lat- 
ter's  mere  assent  to  the  assignment  does  not  amount  to  a  release.  Ffaff  v. 
Golden,  126  Mass.  402;  Oswald  v.  Fratenburgh,  3G  Minn.  270,  31  N.  W.  173; 
■Greenleaf  v.  Allen,  127  Mass.  248;  Nova  Cesarea  Harmony  Lodge  No.  2  v. 
White.  30  Ohio  St.  569,  27  Am.  Rep.  492;  Harris  v.  Heackman,  62  Iowa,  411, 
17  N.  W.  592;  Wilson  v.  Gerhardt,  9  Colo.  585,  13  Pac.  705;  Ghogan  v.  Young. 
23  Pa.  18.  If  the  landlord  accepts  the  sublessee  as  tenant,  and  releases  the 
lessee,  it  is  otherwise.     See  Colton  v.  Gorham,  72  Iowa,  324,  33  N.  W.  76. 

9532  Hen.  VIIL  c.  34. 

98  Baldwin  v.  Walker.  21  Conn.  168;  Howland  v.  Coffin,  12  Pick.  (Mass.) 
125 ;  Perrin  v.  Lepper,  34  Mich.  295.  Where  statute  requires  actions  to  be 
brought  in  name  of  real  party  in  interest,  it  is  held  that  action  on  covenants 
of  lease  may  be  brought  by  assignee  of  reversioner.  See  Masury  v.  South- 
worth,  9  Ohio  St.  340;   Smith  v.  Harrison,  42  Ohio  St.  180. 

9T  Spencer's  Case,  1  Smith,  Lead.  Cas.  168. 


I 


1 


§  199)  ASSIGNMENT  OF  CONTRACTS.  375 

Covenants  Affecting  Freehold  Interests. 

At  common  law,  covenants  entered  into  with  the  owner  of  land — ■ 
that  is  to  say,  promises_uricler  seal  made  to  .the  owner  of  land,  and-ler 
Jiis  benefit — pass  to  his  assignees,  provided,  as  in  other  cases,  they 
touch  _and  concern  the  land  conveyed,  and  are  not  merely  personal."* 
For  instance,  if  the  vendor  of  land  covenants  with  the  purchaser  that 
he  has  a  good  right  to  convey  the  land,  the  benefit  of  the  covenant 
will  pass  to  an  assignee  of  the  purchaser;®^  but  it  would  be  other- 
wise in  case  of  a  covenant  relating  to  a  matter  purely  personal  between 
the  covenantor  and  covenantee/ °° 

On  the  other  hand,  covenants  entered  into  by  the  owner  of  land 
which  restrict. his  enjoyment  of  the  land_do  not,  at  common  law,  bind 
his  assignee,  except  where  he  creates  certain  well-known  interests, 
such  as^_easements,  recognized  by  the  common  law.^°^  If  a  man  an- 
as Horn  V.  Miller,  136  Pa.  640,  20  Atl.  706,  9  L.  R.  A.  810;  Kellogg  v.  Robin- 
son, 6  Vt.  270,  27  Am.  Dee.  550;  Peden  v.  Railway  Co.,  73  Iowa,  328,  35  X. 
W.  424,  5  Am.  St.  Rep.  680;  Coudert  v.  Sayre,  46  N.  J.  Eq.  386,  19  Atl.  190; 
St.  Loiiis,  I.  M.  &  S.  Ry.  Co.  v.  O'Baugh,  49  Ark.  418^  5  S.  W.  418;  Raby  v. 
Reeves,  112  N.  C.  688,  16  S.  E.  760;  Hallenbeck  v.  Kindred,  109  N.  Y.  620, 
15  N.  E.  8S7;  Scott  v.  Stetler,  128  Ind.  385,  27  N.  E.  721;  De  Gray  v.  Club- 
liouse  Co.,  50  N.  J,  Bq.  329.  24  Atl.  388;  Lucas  v.  Turnpike  Co.,  36  W.  Va. 
427,  15  S.  E.  182;  Inhabitants  of  Middlefield  v.  Knitting  Co.,  160  Mass.  267, 
35  N.  E.  780.  Covenant  against  paramount  ground  rent.  Providence  Life 
<t  Trust  Co.  V.  Fiss,  147  Pa.  232,  23  Atl.  560. 

"9  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180.  25  Am.  Dec.  552;  Beddoe's 
Ex'r  V.  Wads  worth,  21  Wend.  (N.  Y.)  120;  Tillotson  v.  Pilchard,  60  Vt.  94, 
14  Atl.  302,  6  Am.  St.  Rep.  95;  Flaniken  v.  Neal,  67  Tex.  629,  4  S.  W.  212; 
Wead  V.  Larkin,  54  111.  489,  5  Am.  Rep.  149;  Thomas  v.  Bland,  91  Ky.  1,  14 
S.  W.  955,  11  L.  R.  A.  240 ;  Succession  of  Cassidy,  40  La.  Ann.  827,  5  South. 
292;  Allen  v.  Kennedy,  91  Mo.  324,  2  S.  W.  142;  Butler  v.  Barnes,  60  Conn. 
170,  21  Atl.  419,  12  L.  R.  A.  273.  But  see  Mygatt  v.  Coe,  124  N.  Y.  212.  26 
\.  E.  611,  11  L.  R.  A.  646;   Id.,  142  N.  Y.  78,  36  N.  E.  870,  24  L.  R.  A.  850. 

100  Cole  V.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611;  Masury  v.  South  worth, 
9  Ohio  St.  340;  Glenn  v.  Canby,  24  Md.  127;  Indianapolis  Water  Co.  v.  Nulte, 
126  Ind.  373,  26  N.  E.  72;  Brewer  v.  Marshall,  18  N.  J.  Bq.  337;  Id.,  19  N.  J. 
Eq.  537,  97  Am.  Dec.  079;  Costigan  v.  Railroad  Co.,  54  N.  J.  Law,  233,  23 
Atl.  810;  Lyford  v.  Railroad  Co.,  92  Cal.  93,  28  Pac.  103.  It  has  been  held 
that  the  right  to  reimbursement,  or  liability  to  reimburse,  for  the  use  of  a 
party  wall,  under  an  agreement  between  adjoining  landowners,  is  personal, 
and  that  it  does  not  run  with  the  land.  Cole  v.  Hughes,  supra;  Todd  v. 
Stokes,  10  Pa.  155;  Gibson  v.  Holden,  115  111.  199,  3  N.  E.  282,  56  Aon.  Rep. 
146;  Nalle  v.  Paggi  (Tex.  Sup.)  9  S.  W.  205.  But  see  Conduitt  v.  Ross,  102 
Ind.  166,  20  N.  E.  198;  King  v.  Wight,  155  Mass.  444,  29  N.  E.  644;  Mott  v. 
Oppenheimer,  135  N.  Y.  312,  31  N.  E.  1097,  17  L.  R.  A.  409.  A  covenant  to 
support  an  old  man  in  consideration  of  a  conveyance  by  him  is  personal,  and 
^•annot  be  shifted  to  a  purchaser  of  the  land  from  the  grantee.  Divan  v. 
Loomis,  OS  Wis.  150,  31  N.  W.  700. 

101  Gibson  v.  Porter  (Ky.)  15  S.  W.  871;  Hagerty  v.  Lee,  54  N.  J.  Law,  580, 
25  Atl.  319,  20  L.  R.  A.  631;  Id..  50  N.  J.  Eq.  464,  26  Atl.  537;  Costigan  v. 
Railroad  Co.,  54  N.  J.  Law,  233,  23  Atl.  810. 


376  OPERATION  OF  CONTRACT.  (Ch.  9 

deavors  to  create  restrictions  on  his  land  other  than  such  interests,  he 
cannot  so  affix  them  to  the  laiid,.as  to  bind  subseq^uent  owners.  As 
said  by  Lord  Brougham :  "It  .must  not,  therefore,  be  supposed  that 
incidents  of  a  novel  kind  can  be  devised  and  attached  to  property,  at 
the  fancy  or  caprice  of  any  owner.  *  *  *  Great  detriment  would 
arise,  and  nmch  confusion  of  rights,  if  parties  were  allowed  to  invent 
new  modes  of  holding  and  enjoying  real  property,  and  to  impress 
upon  their  lands  and  tenements  a  peculiar  character,  which  should 
follow  them  into  all  hands,  however  remote."  ^°* 

Same — In  Equity. 

Courts  of  equity,  however,  have  established  a  class  of  exceptions 
to  the  above  rule.  They  have  been  mainly  confined  to  r/wepants  in 
the  case  of  land  sold  for  building  purposes,  though  there  seems  no 
good  reason  for  any  limitation  of  the  prin'ciple  on  which  they  are  en- 
forced. An  illustration  of  this  class  of  cases  is  where  the  vendor  of 
land  covenants  that  he  will  never  use  the  adjoining  land,  retained  by 
him,  otherwise  than  in  particular  manner.  Where  he  afterwards 
sells  this  adjoining  land  to  one  who  has  notice  of  the  covenant,  the 
latter  is  bound  by  the  covenant.  The  principle  has  been  thus  stated : 
"That  this  court  has  jurisdiction  to  enforce  a  contract  between  the 
owner  of  land  and  his  neighbor  purchasing  a  part  of  it  that  the  latter 
shall  either  use  or  abstain  from  using  the  land  purchased  in  a  particu- 
lar way  is  what  I  never  knew  disputed.  *  *  *  It  is  said  that,  the 
covenant  being  one  which  does  not  run  with  the  land,  this  court  can- 
not enforce  it ;  but  the  question  is  not  whether  the  covenant  runs  with 
the  land,  but  whether  a  party  shall  be  permitted  to  use  the  land  in  a 
manner  inconsistent  with  the_contract  entered  into  by  his  vendor,  and 
with  notice  of  which  he  purchasedT^^^ 

102  Keppell  V.  Bailey,  2  Mylne  &  K.  517.  And  see  Masury  v.  Southworth,  9 
Ohio  St.  340;  Weld  v.  Nichols,  17  Pick.  (Mass.)  538;  Martin  v.  Drinau.  128 
Mass.  515;  Hazlett  v.  Sinclair,  76  Ind.  488,  40  Am.  Rep.  254;  West  Virginia 
Transp.  Co.  v.  Pipe  Line  Co.,  22  W.  Va.  600,  46  Am.  Rep.  527;  Brewer  v. 
Marshall,  18  N.  J.  Eq.  337;  National  Union  Bank  v.  Segur,  39  N.  J.  Law,  184; 
Dorsey  v.  Railroad  Co.,  58  111.  65;  Kennedy  v.  Owen,  136  Mass.  199;  iMay- 
nard  v.  Polhemus  (Cal.)  15  Pac.  451;  Scott  v.  McMillan,  76  N.  Y.  141;  Blomit 
V.  Harvey,  51  N.  C.  186;   Hartung  v.  Witte,  59  Wis.  28.3,  18  N.  W.  175. 

10  3  Tulk  V.  Moxhay,  2  Phil.  774.  And  see  Tnistees  of  Columbia  College 
V.  Thacher,  87  N.  Y.  312>  41  Am.  Rep.  365;  Same  v.  Lynch,  70  N.  Y.  440,  26 
Am.  Rep.  615;  Haskell  v.  Wright,  23  N.  J.  Eq.  380;  Stiues  v.  Dorman,  25 
Ohio  St.  580;  Thurston  v.  Minke,  32  Md.  487;  DeGray  v.  Clubhouse  Co.,  50 
N.  J.  Eq.  458,  24  Atl.  388;  Clark  v.  Maitin,  49  Pa.  289.  Covenant  by  grantor 
of  lots,  "his  heirs  and  assigns,"  not  to  build  improvement  on  lots  retained 
inferior  to  spccitied  qualifications,  binds  his  subsequent  grantees  with  notice. 
Halle  V.  Newbold,  69  Md.  265,  14  Atl.  662.  It  has  even  been  held  that  a  cov- 
enant by  a  vendee  of  land  not  to  sell  sand  therefrom,  the  intention  being  to 
prevent  competition  with  the  vendor,  is  enforceable  against  the  covenantor's 
grantee  buying  with  notice.     Hodge  v.  Sloan,  107  N.  Y.  214,  17  N.  E.  335,  1 


§§  2U0-201)  ASSIGNMENT   OF   CONTKACTS.  377 


SAME— ASSIGNMENT    OF    CONTRACTUAL    OBLIGATION    BY 

MARRIAGE 

200.  At  connuon  laxr,  upon  a  w^oman's  marriage  the  right  to  reduce  her 

cho«es  in  action  into  possession  is  transferred  to  her  husband, 
and  he  becomes  liable  jointly  ivith  her,  during  coverture,  upon 
her  antenuptial  contracts.  These  rules  are  changed  by  statute 
in  most  jurisdictions. 

At  common  law,  a  married  woman  is  disabled  from  acquiring  the 
benefits  of  her  antenuptial  contract,  because  she  cannot  sue  upon  it 
apart  from  her  husband,  and  she  may  lose  them  altogether,  for  they 
are  vested  conditionally  in  the  husband,  who  mry  take  them  to  himself 
by  reduction  into  possession  of  the  chose  in  action.  He  may  also  sue 
jointly  with  his  wife  for  what  is  due  on  her  contracts.  Whatever  is 
thus  obtained  passes  absolutely  to  him.  If  the  husband  does  not  thus 
reduce  his  wife's  choses  in  action  into  his  possession,  they  survive  to 
her  if  he  dies  first,  or  pass  to  her  representatives  if  she  dies  in  his 
lifetime. 

At  common  law,  the  husband  acquires  the  liabilities  of  the  wife  to 
the  extent  that  he  may  be  sued  jointly  with  her  on  any  contracts  made 
by  her  before  marriage. 

Satutory  Changes  in  the  Law. 

In  England  and  in  all  of  our  states  the  common  law  in  this  respect 
has  been  very  greatly  changed  by  statute.  In  some  states  it  has  been 
virtually  abolished  and  in  these  states  the  marriage  of  a  woman  does 
not  in  any  way  affect  her  rights  or  habilities  under  contracts  entered 
into  before  marriage. 

SAME— ASSIGNMENT  OF  CONTRACTUAL  OBLIGATION  BY  DEATH. 

201.  Death  passes  to  the  executors  or  administrators  of  the  deceased 

all  rights  of  action  in  respect  of  the  personal  estate,  and,  to 
the  extent  of  his  estate,  all  liabilities  chargeable  upon  it.  This 
does  not  include— 

EXCEPTIONS — (a)    Contracts   depending   on  the  personal  services  or 

skill  of  the  deceased, 
(b)    Contracts  the  breach  of  -nrhich  involves  a  purely  personal  loss. 

On  the  death  of  a  person  all  his  personal  estate  passes,  by  operation 
of  law,  to  his  executors  or  administrators,  and  with  it  also  pass  all 
rights  of  action  on  contract  which  will  afifect  such  estate,  and  all  lia- 

Am.  St.  Rep.  816.  Agreement  for  exclusive  transportation  of  products  of  land 
by  railroad  to  be  extended  or  built  over  it  will  be  so  enforced.  Kettle  River 
R.  Co.  V.  Railway  Co.,  41  Minn.  4G1,  -13  N.  W.  ■m),  G  L.  R.  A.  111. 


378  OPERATION  OP  CONTRACT.  (Ch.  9 

bilities  arising  out  of  contract  which  are  chargeable  upon  it;^°*  and 
actions  on  such  contracts  are  brought  by  or  against  the  personal  rep- 
resentative in  his  own  name.^"'*  Covenants,  for  instance,  which  are 
attached  to  a  leasehold  estate,  pass,  as~fo~benefit  and  liability,  with  the 
personalty  to  the  executor  or  administrator;  but  covenants  affect- 
ing freehold  estates,  such  as  covenants  for  title  in  a  conveyance  of 
freehold  property,  pass  to  the  heir  or  devisee  of  the  realty. 

This  rule  does  not  include  such  contracts  as  depend  upon  the  per- 
sonal services  or  the  skill  of  the  deceased,  which  expire  on  the  death 
of  either  of  the  parties. ^"^  An  apprenticeship  contract  is  thus  ter- 
minated by  the  death  of  the  master,  and  no  claim  to  the  services  of 
the  apprentice  survives  to  the  executor  or  administrator.^"'^  In  like 
manner,  breach  of  a  contract  which  involves  a  purely  personal  loss 
does  not  confer  a  right  of  action  upon  executors  or  administrators. 
Thus,  where  an  executor  sued  for  a  breach  of  promise  to  marry  his 
testatrix,  the  promise  having  been  broken,  and  the  right  of  action  hav- 
ing accrued  in  her  lifetime,  it  was  held  that  he  could  not  recover,  as 
it  did  not  clearly  appear  that  the  breach  of  contract  had  resulted  in 
damage  to  the  personal  estate.^"* 

Executors  and  administrators  take  no  personal  benefit  from  the  con- 
tracts of  the  decedent,  nor  are  they  personally  liable.  They  merely 
stand  in  his  shoes,  and  represent  him  to  the  extent  of  his  estate. 

104  Anson,  Cont.  (4th  Ed.)  235;  Jewett  v.  Smith,  12  Mass.  309;  Snodgrass 
V.  Cabiness,  15  Ala.  160;  Henderson  v.  Henshall,  54  Fed.  320,  4  C.  G.  A. 
357;  Beecher  t.  Buckingham.  18  Conn.  110,  44  Am.  Dec.  580;  Shirley  v. 
Healds,  34  N.  H.  407.  This  subject  is  covered  by  statute  in  most  of  the 
states. 

10  5  Potter  V.  Van  Yranken,  36  N.  Y.  619. 

106  BAXTER  V.  BURFJBLD,  2  Str.  1266;  DICKINSON  v.  CALAHAN'S 
ADM'RS,  19  Pa.  227;  YERRINGTON  v.  GREExXE,  7  R.  I.  589,  84  Am.  Dec. 
578;  LACY  v.  GETMAN,  119  N.  Y.  109,  23  N.  E.  452,  6  L.  R.  A.  728,  16 
Am.  St.  Rep.  806;  Mai-vel  v.  Phillips,  162  Mass.  399,  38  N.  E.  1117,  26  L.  R. 
A.  416,  44  Am.  St.  Rep.  370;    Blakely  v.  Susa,  Pa.,  47  Atl.  286. 

107  BAXTER  V.  BURFIELD,  2  Strange,  1266. 

10  8  CHAMBERLAIN  v.  WILLIAMSON,  2  Maule  &  S.  408.  And  see  Flnlay 
V.  Chirney,  20  Q.  B.  D.  494;  Stebbins  v.  Palmer,  1  Pick.  (Mass.)  7l,  11  Am. 
Dec.  146;  Smith  v.  Sherman,  4  Gush.  (Mass.)  408;  Chase  v.  Fitz,  132  Mass. 
359;  Wade  v.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250;  Hovey  v.  Page,  55 
Me.  142;  Lattimore  v.  Simmons,  13  Serg.  &  R.  (Pa.)  183;  Grubbs  v.  Suit,  32 
Grat  (Va.)  203,  34  Am.  Rep.  765. 


§§  202-204)  JOINT   AND   SEVERAL   CONTRACTS.  379 


JOINT  AND  SEVERAL  CONTRACTS. 

202.   A  contract  in  xp^hich  there  are  two  or  more  parties  on  either  or 
both  sides  may  be^ 
(a)    Joint; 
<b)    Several;    or 
<c)    Joint  and  several. 

Where  several  persons  enter  into  a  contract  on  the  same  side, 
either  as  promisors  or  promisees,  they  may  do  so  jointly  or  severally, 
•or,  in  the  case  of  the  persons  bound,  jointly  and  severally,  making  a 
joint  promise  and  several  distinct  promises  at  the  same  time.  Whether 
the  contract  is  joint  or  several,  or  both  joint  and  several,  depends  upon 
the  intention  of  the  parties,  as  manifested  in  the  evidence  of  the  con- 
tract, ""rlie  re  are  a  number  of  rules  for  construing  contracts,  arid 
determining  this  intention ;  but  we  must  postpone  their  consideration 
until  v^e  come  to  treat  of  the  interpretation  of  contracts. ^"^  We  shall 
deal  here  only  with  the  rules  that,  govern  the  operation  of  the  con- 
tract after  such  intention  has  been  determined. 

The  rules  which  we  shall  state  are  the  rules  of  the  common  law. 
It  is  never  safe  to  assume  that  they  are  still  in  force  in  any  particular 
jurisdiction,  for  they  have  been  much  modified  by  statute. 


SAME— JOINT  CONTRACTS. 

203.  Where  several  parties  join  in  a  promise, 

(a)  They  are  each  liable  for  the  wrhole  debt  or  performance. 

(b)  They  are  jointly,  and  not  separately,  liable,  and  must  all  be  sued 

jointly. 

^c)  'Where  one  of  them  dies,  the  liability  devolves  upon  the  sur- 
vivors, and,  on  the  death  of  all,  upon  the  personal  representa- 
tive of  the  last  survivor.  V\  <f  \jy.    C^ 

(d)    A  release  of  one,  by  act  of  the  promisee,  releases  all.  ^       u 

204.  W^here  a  promise  is  made  to  several  jointly, 

(a)  They  are  entitled  jointly,  and  not  separately,  and  must  join  in 
a  suit  on  the  promise. 

<b)  Where  one  of  them  dies,  the  legal  right  devolves  upon  the  sur- 
vivors, and  on  them  alone. 

Several  persons  may  join  in  a  contract  on  one  side  or  the  other,  or 
there  may  be  several  persons  on  both  sides.  In  these  cases  the  con- 
tract is  said  to  be  a  joint  contract  or  joint  debt,  and  the  persons  com- 
posing the  respective  parties  thereto  are  called  "joint  creditors"  or 
'"joint  promisees,"  and  "joint  debtors,"  or  "joint  promisors." 


io»  Post,  p.  415. 


o^^- 


380  OPERATION  OF  CONTRACT.  (Cll.  9 

Jomf  Promisors. 

If  several  persons  make  a  joint  promise,  each  is  liable  to  the  promisee 
for  the  whole  debt  or  liability,  notwithstanding  the  fact  that  they  are 
both  liable.  Neither  is  bound  by  himself,  but  each  is  bound  to  the 
full  extent  of  the  promise.  If  both  are  living  and  within  the  juris- 
diction of  the  court,  they  should  all  be  joined  as  defendants  in  an 
action  on  the  contract.^^**  If  one  of  them  is  sued  alone,  he  is  not 
boujid_tp  answer  to  the  merits  of  the  action  without  the  others  being 
sued  with  him.  He  may  demur  if  the  defect  appears  on  the  face  of 
the  pleading,  or  plead  in  abatement  if  it  does  not  so  appear.^"  If 
the  defect  so  appears,  it  is  fatal,  not  only  on  demurrer,  but  on  motion 
in  arrest  of  judgment.^^^  If  it  does  not  so  appear,  the  objection 
must  be  taken  by  plea  in  abatement;  and,  if  the  defendant  pleads  to 
the  merits,  he  cannot  object  that  others  were  jointly  liable  with 
him;  ^^^  for,  when  two  are  jointly  bound  in  one  bond  or  on  one  prom- 
no  Smith  V.  Miller,  49  N.  J.  Law,  521,  13  Atl.  39;  Eller  v.  Lacy,  137 
lud.  43G,  3G  N.  E.  1088;  Van  Leyen  v.  Wreford,  81  Mich.  606,  45  N.  W.  1116; 
Ripley  v.  Crooker,  47  Me.  370,  74  Am:  Dec.  491;  WALKER  v.  BANK,  5  C.  C. 
A.  421,  56  Fed.  76;  Allin  v.  Shadburne's  Ex'r,  1  Dana  (Ky.)  68,  25  Am.  Dec. 
121 ;  O'Brien  v.  Bound,  2  Speer  (S.  C.)  495,  42  Am.  Dec.  384 ;  McCall  v.  Price, 
1  McCord  (S.  C.)  82 ;  Meyer  v.  Estes,  164  Mass.  457,  41  N.  E.  683,  32  L.  R. 
A.  283.  An  understanding  between  the  promisors  themselves  that  one  of 
them  shall  pay  or  perform  the  whole  debt  or  promise  does  not  affect  the 
rule.  Lodge  v.  Dicas,  3  Barn.  &  Aid.  611.  A  familiar  illusti-ation  of  joint 
promises  is  in  the  case  of  partnership  debts.  All  the  partners  must  be  sued. 
In  some  states  it  is  provided  by  statute  that  all  contracts  which  by  common 
law  are  joint  only  shall  be  consti'ued  to  be  joint  and  several.  Belleville  Sav. 
Bank  v.  Winslow  (G.  C.)  30  Fed.  488;  Wibaux  v.  Live  Stock  Co.,  9  Mont.  154, 
22  Pac  492. 
"ill  Rice  V.  Shute,  5  Burrows,  2(;il;  STATE  v.  CHANDLER,  79  Me.  172, 
8  Atl.  553;  Nash  v.  Skinner,  12  Vt.  219,  36  Am.  Dec.  338;  Smith  v.  Miller, 
49  N.  J.  Law,  521,  13  Atl.  39;  Seymour  v.  Minturn,  17  Johns.  (N.  Y.)  169,  8 
Am.  Dec.  380;  Bledsoe  v.  Irvin,  35  Ind.  293;  Henderson  v.  Hammond,  19 
Ala.  340;    Potter  v.  McCoy,  26  Pa.  458. 

n2  Oilman  v.  Rives,  10  Pet.  298,  9  L.  Ed.  432;  BP.AGG  v.  WETZEL,  5 
Blackf.  (Ind.)  95;  SWEIGART  v.  BERK,  8  Serg.  &  R.  308;  McGregor  v. 
Balch,  17  Vt.  507;  Sinsheimer  v.  Skinner  Mfg.  Co.,  165  111.  116,  46  N.  E.  262. 
113  Rice  V.  Shute,  5  Burrows,  2611;  Richards  v.  Heather,  1  Bam.  &  Aid. 
29;  Wilson  v.  INIcCormick,  86  Va.  995,  11  S.  E.  976;  Elder  v.  Thompson,  13 
Gray  (Mass.)  91;  Maurer  v.  Midway,  25  Neb.  575,  41  N.  W.  395;  Mount- 
stephen  v.  Brooke,  1  Barn.  &  Aid.  224;  First  Nat  Bank  v.  Hamor,  7  U.  S, 
App.  69,  1  C.  C.  A.  153,  49  Fed.  45;  Nash  v.  Skinner,  12  Vt.  219,  36  Am.  Dec. 
338;  Hicks  v.  Cram,  17  Vt  449;  Lieberman  v.  Brothers,  55  N.  J.  Law,  379,  26 
Atl.  828;  Coon  v.  Anderson,  101  Mich.  295,  59  N.  W.  607.  Where  joint 
debtors  are  sued  jointly,  and  a  joint  judgment  recovered,  the  whole  amount 
of  the  judgment  may  be  levied  against  one.  Bird  v.  Randall,  1  W  Bl.  388. 
Where  judgment  is  tlius  obtained  against  less  than  all  the  joint  debtors,  it 
merges  or  extinguishes  tlie  right  of  action  as  against  all.  KING  v.  HOARE, 
13  Mees.  &  W.  494;  KENDALL  v.  HAMILTON.  4  App.  Cas.  504;  Mason  v. 
Eldrcd,  G  Wall.  231,  18  L.  Ed.  783;    Ward  v.  Johnson,  13  Mass.  148.     Other- 


v^ 


§§  203  -204)       JOINT  AND  SEVERAL  CONTRACTS.  381 

ise,  thougli  neither  of  them  is  l:)Ound  by  himself,  yetLjieitkeiL-aLthem 
can  say  that  it  is  not  his  deed  or  promise.^ ^* 

Same — Survivorship. 

Upon  the  death  of  one  of  several  joint  promisors,  the  liability  de- 
volves upon  the  survivors.  The  personal  representative  of  the  de- 
ceased promisor  cannot  be  sued  jointly  with  the  survivors.  The 
whole  liability,  in  this  way,  ultimately  devolves  upon  the  last  surviving 
promisor,  and,  after  his  death,  upon  his  representative. ^^"^  The  estate 
of  a  deceased  joint  debtor  may  be  charged  in  equity,  unless  he  was 
merely  a  surety,  and  received  no  benefit  from  the  contract.^ ^* 

Same — Release. 

At  common  law,  a  release  of  one  joint  debtor  by  operation  of  law — 
as  by  a  discharge  in  bankruptcy  or  insolvency — does  not  affect  the 
Hability  of  the  others.^ ^"  It  is  otherwise,  however,  where  the  release 
is  by  an  act-of  tbe-ereditor.  In  the  latter  case  the  other  debtors  are 
discharged. ^^*  A  mere  covenant  not  to  sue  one  joint  debtor,  it  seems, 
does  not  operate  as  a  discharge  of  tlie  others.^^® 

wise  where  the  judgment  is  recovered  against  one  of  the  joint  debtors  on  a 
checli  given  by  him  for  the  demand.     PROSSER  v.  EVANS,  1  Q.  B.  (1S1>5)  108. 

Ill  WHELPDAEE'S  CASE,  5  Coke,  119;  Rice  v.  Shute,  5  Bun-ows,  261^. 

115  RICHARDS  v.  HEATHEPh  1  Bam.  &  Aid.  29;  Gere  v.  Clarlc,  G  Hill 
(N.  Y.)  350;  Brown  v.  Benight,  3  Blackf.  (Ind.)  37,  23  Am.  Dec.  373;  Foster  v. 
Hooper,  2  Mass.  572;  Stevens  v.  Catlin,  152  111.  5G,  37  N.  E.  1023;  Hoskinson  v. 
Eliott,  62  Pa.  393;  Atwell  v.  INIilton,  4  Hen.  &  M.  (Va.)  2-53;  Clark  v.  I'arish, 
1  Bibb  (Ky.)  547;  Murphy  v.  Weil,  92  Wis.  4G7,  GG  N.  VV.  532.  As  to  the  effect 
of  the  death  of  a  joint  debtor  after  judgment,  see  Leake,  Cont.  215;  Harbarfs 
Case,  3  Coke,  14a.  The  doctrine  of  survivorship  is  virtually  abolished  by 
statute  in  most  states.  Taylor  v.  Taylor,  5  Humph.  (Tenn.)  110;  Williams 
V,  Bradley,  5  Ohio  Cir.  Ct.  R.  114:  Fisher  v.  Hopkins,  4  Wyo.  379.  34  Pac. 
899;  Bachelder  v.  Fiske,  17  Mass.  4(M. 

lie  DAVIS  V.  VAN  BUREN,  72  N.  Y.  587;  Richardson  v.  Draper,  87  N.  Y. 
337. 

11'?  Leake,  Cont.  214.  Otherwise  if  creditor  presents  claim,  under  statute 
providing  that  creditor  so  doing  shall  be  barred.  Mungau  v.  French,  GO  N. 
J.  112,  3G  Atl.  771. 

lis  Brooks  V.  Stuart,  9  Adol.  &  E.  854;  Maslin  v.  Hiett,  37  W.  Va.  15,  IG 
S.  E.  437;  Rowley  v.  Stoddard.  7  Johns.  (N.  Y.)  207;  HALE  v.  SPAULDING, 
145  Mass.  482,  14  N.  E.  534.  1  Am.  St.  Rep.  475;  Goldbeck  v.  Bank,  147  Pa. 
2G7,  23  Atl.  5G5;  Lunt  v.  Stevens,  24  Me.  534;  Aliin  v.  Shadburue,  1  Dana 
(Ky.)  68,  25  Am.  Dec.  121;  Newcomb  v.  Ray  nor,  21  AVend.  (N.  Y.)  108,  34 
Am.  Dec.  219.  This  is  changed  by  statute  in  some  states.  Otherwise  if  the 
instrument  shows  a  contrary  intention,  as  by  a  reseiwatiou  of  rights  against 
other  parties.  North  v.  Wakefield,  13  Q.  B.  53G;  Yates  v.  Donaldson,  5  Md. 
389,  Gi  Am.  Dec.  2S3;  Whittemore  v.  Judd  Linseed  &  Sperm  Oil  Co.,  124 
N.  Y.  5G.J,  27  N.  E.  244.  21  Am.  St.  Rep.  708;    Parsons,  Cont  29. 

119  Clayton  v.  Kyuaston,  2  Salk.  573;  Shed  v.  Pierce,  17  Mass.  62S;  Couch 
V.  Mills,  21  Wend.  (N.  Y.)  424;  Walker  v.  McCulloch.  4  Greenl.  (Me.)  421; 
McLellau  v.  Bank,  24  Me.  5GG;   Rowley  v.  Stoddard,  7  Johns.  (N.  Y.)  207. 


4- 


\ 


382  OPERATION  OF  CONTRACT.  (Cll.  &' 

Joint  Promisees. 

Where  the  contract  is  joint  on  the  part  of  the  promisees,  all  must" 
join  in  suing  upon  it.^-°  Even  a  disclaimer  by  one,  if  without  the 
assent  of  the  promisor,  will  not  entitle  the  others  to  sue  alone/^^  If 
one  of  them  is  not  joined  as  a  plaintiff,  the  defendant  may  plead  in 
abatement;  but  failure  to  do  so  will  not  constitute  a  waiver  of  the 
defect.^==2 

Same — Survivorship. 

Where  one  of  several  joint  promisees  dies,  the  legal  right  under 
the  contract  devolves  upon  the  survivors,  and  they  only  can  sue  on 
the  contract.  The  representative  of  the  deceased  promisee  cannot  be 
joined,  nor  can  he  sue  alone.^^* 

Same — Release. 

A  payment  of  the  debt  to  one  of  several  joint  promisees  is  a  dis- 
charge of  the  debt.     So,  also,  one  of  the  promisees,  without  the  others 

joining,  may  give  a  valid  release  of  the  debt,  and  it  will  bind  the         J 
others.^24  ,        I 

120  Eccleston  v.  Clipsbam,  1  Wms.  Saund.  153;   Hatsall  v.  Griffith,  2  Cromp. 

6  M.  G79;  Pease  v.  Hii-st,  10  Barn.  &  C.  122;  Dob  v.  Halsey,  16  Johns.  (N.  Y.) 
34,  S  Am.  Dec.  293;  Gould  v.  Gould,  6  Wend.  (N.  Y.)  2(53;  Hewes  v.  Bayley, 
20  Pick.  (Mass.)  90;  Archer  v.  Bogue,  3  Scam  (111.)  526;  Wilson  v.  Wallace, 
8  Serg.  &  K.  (Pa.)  53;  Slaughter  v.  Davenport,  151  Mo.  26,  51  S.  W.  471. 
See,  also,  Clark  v.  Great  Northern  R.  Co.  (C.  C.)  hi  Fed.  282. 

121  Wetherell  v.  Langston,  1  Exch.  634;  Angus  v,  Kobinsou,  59  Vt.  585. 
8  Atl.  497,  59  Am.  Rep.  75S;    Whart.  Cont.  814. 

122  If  one  of  the  joint  promisees  is  omitted,  and  the  defect  appears  upon 
the  record,  It  may  be  objected  to  by  demurrer,  or  by  motion  in  arrest  of  judg- 
ment or  by  error.  Petrie  v.  Bury,  3  Barn.  &  C.  353;  Pugh  v.  Stringtield, 
3  C.  B.  (N.  S.)  2;  Wetherell  v.  I.angston,  1  Exch.  634;  Ehle  v.  Purdy,  6 
Wend.  (N.  Y.)  629;  Baker  v.  Jewell,  6  Mass.  460,  4  Am.  Dec.  162;  Beach  v. 
Hotchkiss,  2  Conn.  697;  Wiggin  v.  Cumiugs,  S  Allen  (Mass.)  353.  If  the  de- 
fect does  not  appear  upon  the  record,  there  would  be  a  variance  between  the 
contract  as  pleaded  and  proved,  which,  unless  amended,  would  be  fatal. 
JELL  v.  DOUGLAS,  2  B.  «fc  Aid.  374;  Chanter  v.  Leese,  4  Mees.  &  W.  295; 
Hallett  V.  Gordon,  122  Mich.  567,  81  M.  W.  556. 

123  MARTIN  V.  CRUMP,  2  Salk.  444;  ANDERSON  v.  MARTINDALE,  1 
East  497;  Peters  v.  Davis,  7  Mass.  257;  Murray  v.  Mumford,  6  Cow.  (N.  Y.) 
441;  Supreme  Lodge  v.  Portingall,  167  111.  291,  47  N.  E.  203,  59  Am.  St  Rep. 
296;    Mcintosh  v.  Zaring,  150  Ind.  301,  49  N.  E.  164. 

124  RAAVSTORNE  v.  GANDELL,  15  Mees.  &  W.  304;    Wilkinson  v,  Lindo, 

7  Mees.  &  W.  81 ;  ]Myrick  v.  Dame,  9  Cush.  (Mass.)  248;  Tuckerman  v.  New- 
hall,  17  Mass.  581;  Bruen  v.  Marquard,  17  Johns.  (N.  Y.)  58;  Pierson  v.  Hooker. 
3  Johns.  (N.  Y.)  68,  3  Am.  Dec.  467;  Napier  v.  McLeod,  9  Wend.  (N.  Y.)  120; 
OSBORN  V.  MARTHA'S  VINEYARD  R.,  140  Mass.  549,  5  N.  E.  486 ;  Moore 
V,  Bevier,  00  Minn.  240,  62  N.  W.  281.  Where  a  partner  in  a  firm  doing  biisi- 
ness  in  the  .state,  to  which  a  citizen  of  the  state  was  indebted,  was  a  non- 
resident a  discharge  of  the  debtor  in  insolvency  by  a  court  of  the  stiite,  since 
It  did  not  affect  the  rights  of  the  noni'esident,  did  not  discharge  the  debt. 
Chase  v.  Ileni-j-,  166  Mass.  577,  44  N.  E.  988,  55  Am.  St.  Rep.  423. 


1 


§§  205-206)  JOINT   AND    SEVERAL   CONTRACTS.  383 

SAME— SEVERAL  CONTRACTS. 

205.  If  t-wo  or  more  parties  bind  themselves  severally  to   another  in 

respect  of  the  same  matter  or  debt,  their  liability  is  separate 
and  distinct,  and  they  cannot  be  sued  jointly. 

206.  If  one  party  binds  himself  to  several  parties  severally,  their  right 

to  enforce  the  promise  is  separate. 

On  the  other  hand,  several  persons  may  bind  themselves  severally 
to  another  in  respect  of  the  same  matter  or  debt,  so  that  the  creditor 
is  entitled  to  claim  the  whole  debt  or  performance  against  each  debtor 
separately.^ ^^  In  such  case  the  promisors  must  be  sued  separately; 
they  cannot  be  sued  jointly.^^^  Where  the  promisors  are  severally 
liable,  and  therefore,  of  course,  where  they  are  both  jointly  and  sev- 
erally liable,  a  judgment  against  less  than  all  of  them  does  not  dis- 
charge the  others  until  it  has  been  satisfied. ^^'^  Again,  one  person 
may  bind  himself  to  each  of  several  persons,  provided  the  interest  of 
each  in  the  subject-matter  of  the  promise  is  several,  so  that  each  prom- 
isee is  separately  entitled  to  sue  thereon.^^® 

Survivorship. 

The  doctrine  of  survivorship  applicable  to  joint  contracts  does  not 
apply  to  several  contracts/^" 

125  Lurton  T.  Gilliam,  1  Scam.  (III.)  577,  33  Am.  Dec.  430. 

120  Davis  V.  Belford,  70  Mich.  120,  37  N.  W.  919;  Price  v.  Railroad  Co., 
18  Ind.  137;  Sims  v.  Clark,  91  Ga.  302,  18  S.  B.  158;  Streator  v.  Paxton,  201 
Pa.  135,  50  Atl.  92G.  This  is  changed  by  statute  in  most  states.  See  Steftes 
V.  Lemke,  40  Minn.  27,  41  N.  W.  302;  Wibaux  v.  Live-Stock  Co.,  9  Mont.  154, 
22  Pac.  492;  Brown  v.  McKee,  108  N.  C.  387,  13  S.  E.  8;  Wallis  v.  Carpenter, 
13  Allen  (Mass.)  19;   Costigan  v.  Lunt,  104  Mass.  217. 

127  Ward  V.  Johnson,  13  Mass.  148;  Harlan  v.  Beri-y,  4  G.  Greene  (Iowa) 
212. 

128  KEIGHTLEY  v.  WATSON,  3  Ex.  716;  Rorabacher  v.  Lee,  IG  Mich.  169; 
Hall  v.  Leigh.  8  Cranch.  50,  3  L.  Ed.  484;  Chanter  v.  Leese.  4  Mees.  &  W. 
295;  Geer  v.  School  Dist,  6  Vt.  76;  Catawissa  R.  Co.  v.  Titus,  49  Pa.  277; 
Yates  V.  Foot,  12  Johns.  (N.  Y.)  1;  Burton  v.  Henry,  90  Ala.  281,  7  South. 
925;  Emmeluth  v.  Home  Benefit  Ass'n.  122  N.  Y.  130.  25  N.  E.  234,  9  L.  R. 
A.  704;  Shipman  v.  Straitsville  Cent  Min.  Co.,  158  U.  S.  356,  15  Sup.  Gt. 
886,  39  L.  Ed.  1015. 

i29Enys  V.  Donnithorne,  2  Burrows,  1190;  Garthrae  v.  Brown,  3  Leigb 
(Va.)  98,  23  Am.  Dec.  255. 


384  OPERATION  OF   CONTRACT.  (Ch.  9 


SAME-CONTRACTS   BOTH   JOINT    AND    SEVERAI*. 

207.    AVliere  a  contract  in  respect  of  the  promisors  is  both  joint  and 
several, 

(a)  The  promisee  may  sue  all  the  promisors  jointly,  or  each  one  sep- 

arately. 

(b)  If  he  sues  jointly,  he  must  sue  all  the  promisors;    he  cannot  sue 

less  than  all  jointly. 

Again,  several  persons  may  concurrently  contract  respecting  the 
same  matter,  binding  themselves  jointly  and  also  severally. ^^^ 

Where  the  promise  is  both  joint  and  several,  the  promisee  may,  at 
his  election,  either  sue  all  the  promisors  jointly,  or  each  one  of  them 
separately.^^^  But  he  must  do  one  or  the  other.  He  cannot  sue  less 
than  all  of  them  jointly.  If,  for  example,  there  are  three  promisors, 
he  cannot  join  two.^^^ 

A  promise  cannot  be  so  made  in  respect  of  one  and  the  same  matter 
as  to  entitle  several  persons  under  it  both  jointly  and  severally.  They 
must  either  be  entitled  under  it  jointly  only,  or  severally  only.^^^ 

Survivorship. 

As  we  have  seen,  the  doctrine  of  survivorship  does  not  apply  to 
several  contracts.  It  necessarily  follows  that  it  does  not  apply  to  joint 
and  several  contracts. 


SAME— CONTRIBUTION  BETWEEN  JOINT  DEBTORS. 


208.  AVhere  one  of  several  joint  debtors  pays  the  \rhole  debt,  he  may, 
in  the  absence  of  an  agreement  to  the  contrary,  enforce  con- 
tribution from  the  others;  that  is,  he  may  recover  from  them 
their  proportionate  share  of  the  debt. 

The  rights  and  liabilities  of  persons  who  have  contracted  jointly 
or  severally  respecting  the  same  matter  as  between  themselves  depend 

130  Leake,  Cont.  217;  BEECHAM  y.  SMITH,  El.,  Bl.  &  El.  442;  Hemmen- 
■way  V.  Stone,  7  Mass.  54,  5  Am.  Dec.  27;  Klapp  v.  Kleckner,  3  Watts  &  S. 
(Pa.)  51!). 

131  Sciiilling  V.  Black,  49  Kan.  .%2,  31  Pac.  143;  Carter  v.  Carter,  2  Day 
(Conn.)  442,  2  Am.  Doc.  113.  A  judgment  against  all  Is  not  a  bar  to  an  action 
against  eacb,  PEOPLE  v.  HARRISON,  82  111.  84;  Davis  v.  Sanderlin.  119 
N.  C.  84,  25  S.  E.  815.    Contra,  United  States  v.  Price,  9  How.  83,  13  L.  Ed.  56. 

132  STATE  V.  CHANDLER,  79  Me.  172,  8  Atl.  553. 

133  SLINGSBY'S  CASE,  5  Coke,  18b;  ANDERSON  v.  MARTINDALE.  1 
East,  497;  Bradbinne  v.  Botfield,  14  Mees.  &  W.  573;  Eveletli  v.  Sawyer,  96 
Me.  227,  52  Atl.  G39. 


§  208)  JOINT   AND    SEVERAL    CONTRACTS.  3S5 

upon  the  relation  in  which  they  stand,  and  the  agreement  or  under- 
standing upon  which  they  have  joined  in  the  contract.  In  general, 
the  contract  itself  is  independent  of  such  relation  or  agreement.  In 
contracts  of  guaranty  or  suretyship,  for  instance,  made  between  the 
creditor  and  the  principal  debtor  and  his  sureties,  the  principal  debtor 
and  the  sureties  are  usually  all  made  debtors  in  equal  degree  to  the 
creditor,  who  may  recover  the  whole  debt  against  all  or  any  of  them. 
As  between  themselves,  however,  the  principal  debtor  is  solely  liable ; 
and,  if  the  surety  is  called  upon  by  the  creditor  to  pay  any  part  of  the 
debt,  he  may,  upon  payment,  recover  the  amount  from  the  principal 
debtor. ^^*  So,  where  there  are  several  sureties,  who  are  all  primarily 
liable  for  the  whole  debt  to  the  creditor,  and  one  of  them  is  called 
upon  to  pay,  ea^h.  of  the  cosureties  becomes  ratably  indebted  to  him 
for  contribution. ^^^  This  rule  is  not  limited  to  contribution  between 
sureties,  but  applies  to  joint  contractors  generally.  Where  one  of 
them  is  compelled  to  pay  the  whole  debt,  the  law  creates  a  promise. 
qn_tlie  part  of  the  others  to  pay  him  their  proportion,  and  he  may  sue 
theni  thereon,^ ^®  The  liability  is  c|uasi_contrjictual.  This  doctrine 
of  contribution  applies  where  the  contract  is  joint,  or  both  joint  and 
several,  but  not  where  it  is  several  only.  Formerly  the  right  to  con- 
tribution could  only  be  enforced  in  equity,  but  now,  except  as  between 
sureties,  it  may  be  enforced  at_JaWj  as  well  as  in_£qiiity.  In  some 
jurisdictions  contribution  between  sureties  can  still  be  enforced  in 
equity  only,  except  where  a  statute  provides  otherwise. ^^'^ 
'  The  principal  contract  may  in  some  cases  be  affected  by  the  rights 
and  relations  of  the  several  parties  who  join  in  it.  For  instance,  in 
contracts  of  guaranty  or  suretyship,  the  creditor  is  bound,  upon  princi- 
ples of  equity,  to  abstain  from  any  dealing  with  the  debtor  which  may 
prejudice  the  surety.  If  he  binds  himself  to  give  further  time  to  the 
debtor,  without  the  consent  of  the  surety,  the  latter  is  discharged.^' 


138 


134  Post,  p.  634,  note  21. 

isB  Post,  p.  533.  The  quasi  contract  for  contribution  is  several  and  not 
joint.  A  surety  tlierefor  may  enforce  contribution  against  tbe  estate  of  a 
deceased  cosurety.  Bactielder  v.  Fislie,  17  Mass.  4G4;  Handley  v.  Heflin,  84 
Ala.  600.  4  South.  725. 

i3cDoremus  v.  Selden,  19  Johns.  (N.  Y.)  213;  Sears  v.  Starbird,  78  Cal. 
225,  20  Pac.  547;  Fletcher  v.  Grover,  11  N.  H.  3GS,  35  Am.  Dec.  497;  Jeffries 
V.  Ferguson,  87  Mo.  244;  Foster  v.  Burton,  62  Vt  239,  20  Atl.  326;  Logan  v. 
Trayser,  77  Wis.  579,  46  N.  W.  877. 

13T  Longley  v.  Griggs,  10  Pick.  (Mass.)  121;  McDonald  v.  Magruder,  3  Pet. 
470,  7  I/.  Ed.  744. 

138  Kees  V.  Berrington,  2  Ves.  Jr.  .540;  Pooley  v.  Harradine.  7  El.  &  Bl.  431; 
Gordon  v.  Bank,  144  U.  S.  97,  12  Sup.  Ct.  657,  36  L.  Ed.  360.  Chemical  Co. 
V.  Pegraoi,  112  N.  C.  614,  17  S.  E.  298;  Durbin  v.  Kuney,  19  Or.  71,  23  Pac. 
661. 

Clark  Cont.  (2d  Ed.) — 25 


A>- 


386  INTERPRETATIOIS   OF  CONTllACT.  (Gil.  10 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT. 

209-213.  Rules  Relating  to  Evidence — In  General — Parol  Evidence. 
214-215.  Proof  of  Document. 

216.  Evidence  as  to  Fact  of  Agreement 

217.  Evidence  as  to  Terms  of  Contract 
218-219.  Rules  of  Construction — General  Rules. 

220.  Rules  as  to  Time. 

221-222.  Rules  as  to  Penalties  and  Liquidated  Damages. 

223.  Joint  and  Several  Contracts. 

We  have  next  to  consider  the  mode  in  which  the  courts  deal  with  a 
contract  when  it  comes  before  them  in  Htigation,  or  the  interpretation 
of  contracts.  In  considering  this  question  we  have  to  learn  how  the 
existence  and  the  terms  of  a  contract  are  proved ;  how  far,  when 
proved  to  exist  in  writing,  they  can  be  modified  by  evidence  extrinsic 
to  that  which  is  written;  and  what  rules  have  been  adopted  for  con- 
struing the  meaning  of  the  terms  when  fully  before  the  court.  The 
subject,  therefore,  divides  itself  into  (i)  rules  relating  to  evidence, 
and  (2)  rules  relating  to  construction.  Under  the  first  head  we  have 
to  consider  the  sources  to  which  we  may  go  for  the  purpose  of  ascer- 
taining the  expression  by  the  parties  of  their  common  intention.  Un- 
der the  second  we  have  to  consider  the  rules  which  exist  for  constru- 
ing that  intention  from  expressions  ascertained  to  have  been  used.^ 


RULES  RELATING  TO  EVIDENCE— IN   GENERAL— PAROL  EVI- 

DENGE.2 

209.  Tlie    circnmstances    under    Tirhicli    an    alleged    contract    by    -word 

of  mouth  xtras  made,  tvhat  xras  said  and  done  by  tbe  parties, 
and  their  intention  to  contract,  are  questions  of  fact  for  the 
jury.  Whether  ivhat  teas  said  and  done  amounts  to  a  contract, 
and  its  effect,  are  questions  of  laiv  for  the  court. 

210.  Where    a   man   is    proved   to    have    made    a    contract   by   Tirord   of 

mouth  upon  certain  terms,  he  cannot  say  he  did  not  mean  what 
he  said. 

211.  A  contract,  or  portion  thereof,  reduced  to  \rriting,  cannot  be  al- 

tered by  parol  evidence. 

212.  If  a  contract  is  under  seal,  the  instrument  itself  is  the  coutract«^ 

and  its  proof  proves  the  contract. 

1  Anson,  Cont.  (4tli  Ed.)  237. 

2  Following  subbUiulially  Anson,  Cont  (4tli  Ed.)  238-240. 


y- 


§§  209-213)  RULES   RELATING   TO   EVIDENCE.  387 

213.  A  writing  not  under  seal,  whether  required  by  the  statute  of 
frauds  or  not,  is  not  itself  the  contract,  but  only  evidence  of 
the  contract,  so  that  a  simple  contract  may  have  to  be  proved 
by  w^riting,  or  by  proof  of  w^ords  or  acts,  or  partly  by  one  and 
partly  by  the  other. 

If  a  dispute  arises  as  to  the  terms  of  a  contract  made  by  word  of 
month  or  by  acts,  or  partly  by  both,  it  is  necessary,  in  the  first  instance, 
to  ascertain  what  was  said  or  done,  and  the  circumstances  under  which 
the  supposed  contract  was  formed.  These  are  questions  of  fact  to 
be  determined  by  the  jury  from  the  evidence  adduced  before  them. 
\ When  a  jury^  has  found,  as  a  matter  of  fact,  what  the  parties  said  and 
did,  and  that  they  intended  to  enter  into  a  contract,  it  is  for  the  court 
to  say  whether  what  they  have  said  or  done  amounts  to  a  contract, 
and  what  is  its  effect. 

When  a  person  is  proved  to  have  made  a  contract  by  word  of  mouth 
upon  certain  terms,  he  cannot  be  heard  to  say  that  he  did  not  mean 
what  he  said.  The  law  imputes  to  a  person  a  state  of  mind  or  inten-V 
tion  corresponding  to  the  rational  and  honest  meaning  of  his  words;! 
and  not  only  of  his  words,  but  of  his  actions  as  well ;  and  where  the 
conduct  of  a  person  towards  another,  judged  by  a  reasonable  standard, 
manifests  an  intention  to  agree  in  regard  to  some  matter,  that  agree- 
ment is  esjablished  in  law  as^a  fact  by  proof  of  tha^conductj  whatever 
may  be  the  real  but  uneScpfessedT  sfafe^oTRis  mind  on  the  matter. 

The  principle  above  stated  applies  also  to  contracts  made  in  writing. 
Where  parties  have  put  into  writing  any  portion  of  the  terms  of  their 
agreement,  they  cannot  alter  by  parol  evidence  that  which  is  written ;  ■ 
and,  where  the  writing  purports  to  be  the  whole  of  the  agreement,  it 
can  neither  be  added  to  nor  varied  by  parol  evidence  of  their  unex- 
pressed intention. 

It  is  not  necessary  for  us  to  discuss  the  rules  of  evidence  as  regards 
purely  oral  contracts,  for  proof  of  a  contract  made  by  word  of  mouth 
is  a  part  of  the  general  law  of  evidence.  Our  consideration  of  the 
rules  of  evidence  will  therefore  be  confined  to  their  effect  upon  written 
contracts  and  contracts  under  seal. 

I  Admissible  evidence  extrinsic  to  such  contracts  falls  under  three 
/lieads :  (i)  Evidence  as  to  the  fact  that  there  is  a  document  purport- 
ing to  be  a  contract,  or  part  of  a  contract.  (2)  Evidence  that  the  pro- 
fe^sed-contract  is  in  fact  what  it  professes  to  be.  It  may  lack  some 
element  necessary  to  the  formation  of  coiitraci,  or  be  subject  to  some 
parol  condition  upon  which  its  existence  as  a  contract  depends.  (3) 
Evidence  as  to  the  ierm^  of  the  contract.  These  may  require  illustra- 
tion which  necessitates  some  extrinsic  evidence ;  or  they  may  be  ambig- 
uous, and  then  may  be  in  like  manner  explained ;  or  they  may  comprise, 
unexpressed,  a  custom  or  usage  the  nature  and  effect  of  which  have 
to  be  proved. 


388  INTERPRETATION  OF  CONTRACT.  (Cb.  10 

Difference  between  formal  and  Simple  Contracts. 

Before  taking  up  these  questions  as  to  the  admissibility  of  evidence 
it  will  be  well  to  note  the  difference  between  contracts  under  seal  and 
simple  contracts  in  writing,  as  illustrated  by  the  rules  of  evidence  re- 
specting them.  A  contract  under  seal,  as  we  have  seen,  derives  its 
vjJidity  from  the  form  irLJwblchJt  finds  expression ;  therefore,  if  the 
instrument  is  proved,  the  contract  is  proved,  unless  it  can  be  shown 
to  have  been  executed  under  such  circumstances  as  preclude  the  forma- 
tion of  contract,  or  to  have  been  delivered  to  a  third  person  under 
conditions  which  have  remained  unfulfilled,  so  that  the  deed  is  no 
more  than  an  escrow.  A  written  contract  not  under  seal,  however,  is 
not  the  contract  itself,  but  only  evidence  of  the  contract, — a  record 
of  the  contract.^  Even  where  statutory  requirements  for  writing 
exist,  as  under  the  statute  of  frauds,  the  writing  is  nothing  more  than 
evidence  of  the  agreement.  A  written  offer  containing  all  the  terms 
of  the  contract,  signed  by  the  proposer,  and  accepted  by  the  other  party 
by  performance  on  his  part,  is  enougiL.tQ..en-a.bie.-tlie  latter  to  sue  under 
the  statute  of  frauds.  And  where  there  is  no  such  necessity  for  writ- 
ing, it  is  optional  with  the  parties  to  express  their  agreement  by  word 
of  mouth,  by  action,  or  by  writing,  or  partly  by  one  and  partly  by 
another  of  these  processes.  It  is  always  possible,  therefore,  that  a 
simple  contract  may  have  to  be  sought  for  in  the  words  and  acts,  as 
well  as  in  the  writing,  of  the  contracting  parties.  But  in  so  far  as 
thev Jiaye  reduced  their  meaning  to  writing  they  cannot  adduce  evi- 
dence in  contradiction  or  alteration  of  it.  They  put  on  paper  what 
is  to  bind  them,  and  so  mal<:e  the  written  document  conclusiy£^vidence 
against  them.* 

SAME— PROOF  OF  DOCUMENT. 

214.  A  contract  under  seal  is  proven  by  evidence  of  the  sealing   and 

delivery. 

215.  In    proving    a    simple    contract   evidenced   by   a   document,    parol 

evidence  is  admissible  for  the  folloiving  purposes: 
(a)    To  sboTO-  tbat  the  defendant  is  the  person  ^vho  made  the  contract. 
<b)    To   supplement  the   wrriting  ivhere  it  only  constitutes   a  part  of 

the  contract, 
^c)    To  connect  several  documents  Avhich  together  shoxc^  the  contract, 

except— 

EXCEPTION— "Where  the  contract  is  within  the  statute  of  frauds. 

Contracts  under  Seal. 

A   contract  under  seal  is   proved  by  evidence  of  the   sealing  and 
delivery.     At  common  law  it  is  necessary  to  call  one  of  tlie  attesting 

*  Wake  V.  Harrop,  G  Hurl.  &  N.  7U8.  *  Id. 


§§  214-215)  RULES    RELATING   TO    EVIDENCE.  389 

witnesses  where  a  contract  under  seal  is  attested ;  "^  but  by  statute  in 
many  jurisdictions  this  is  no  longer  necessary.  Where  the  attesting 
witnesses  are  dead,  or  without  the  jurisdiction  of  the  court,  or  are  for 
any  other  reason  incapable  of  testif}ing,  the  sealing  and  delivery  of  the 
deed  is  sufficiently  shown  by  proof  of  their  hi^)^(\\Mr'\t'u-ig  «  In  a  num- 
ber of  states  it  has  been  considered  that  proof  of  the  handwriting  of 
the  grantor  or  obligor  furnishes  more  satisfactory  evidence  of  its  exe- 
cution than  proof  of  the  handwriting  of  the  subscribing  witness,  and 
such  proof  has  been  held  sufficient,  except  in  the  case  of  instruments 
which  the  law  requires  to  be  attested  by  witnesses.'' 

Simple  Contracts. 

In  proving  a  simple  contract,  whether  in  writing  or  not,  pf^rnl  evL- 
dence  is  always  necessary  to  show  that  the  party  sued  is  the  party  who 
made  the  contract  and  is  bound  by  it.  In  no  other  way  could  this  be 
shown. 

Oral  evidence  must  of  course  supplement  the__writing  where  the 
writing  only  constitutes  a  part  of  the  contract.  For  instance,  if  a 
person  writes  another  that  he  will  give  the  latter  a  certain  sum  for  an 
article,  and  tells  him  to  ship  it  if  he  accepts  the  offer,  parol  evidence 
of  the  shipment  would  be  necessary  to  prove  conclusion  of  the  con- 
tract. And  so,  if  a  person  puts  the  terms  of  an  agreement  into  a 
written  offer  which  the  other  party  accepts  by  word  of  mouth,  or  if, 
where  no  writing  is  necessary,  he  puts  part  of  the  terms  into  writing, 
and  arranges  the  rest  by  parol  with  the  other  party,  oral  evidence 
must  be  given  in  both  cases  to  show  that  the  contract  was  concluded 
upon  those  terms  by  the  acceptance  of  the  other  party.^ 

So,  also,  where  the  evidence  of  a  contract  consists  of  several  docu- 
ments which  do  not  on  their  face  show  their  connection  with  each 
other,  parol  evidence  is  admissible  to  show  their  connection,®  except 

5  Bnrke  v.  Miller,  7  Cush.  (Mass.)  547;  Henry  v.  Bishop,  2  Wend.  (N.  Y.) 
575;  Jackson  v.  Gager.  5  Cow.  (N.  Y.)  383;  Hess  v.  Griggs,  43  Mich.  307,  5 
N.  W.  427;  McA clams'  Ex'rs  v.  Stihvell,  13  Pa.  90;  Brigham  v.  Palinor.  3 
Allen  (Mass.)  450;  Melcher  v.  Flanders,  40  N.  H.  139;  Jackson  v.  Sheldon, 
22  Me.  5G9 ;   Dorr  v.  School  Dist.,  40  Ark.  237. 

6  Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  33  Am.  Dec.  715 ;  Beattie  v.  Hil- 
liard,  55  N.  H.  428;  Davis  v.  Higgins,  91  N.  C.  382;  Richards  v.  Skiff,  8  Ohio 
SL  5S0;  Elliott  v.  Dycke,  78  Ala.  150;  Troeder  v.  Hyams,  153  Mass.  oiJO. 
27  N.  E.  775;   Stebbins  v.  Duncan,  108  U.  S.  32,  2  Sup.  Ct.  313,  27  L.  Ed.  Ml. 

-'  Newsom  v.  Luster,  13  111.  175;  Cox  v.  Davis,  17  Ala.  714,  52  Am.  Dec. 
1C9;  Woodman  v.  Segar,  25  Me.  90;  Valentine  v.  Piper,  22  Pick.  (Mass.)  85, 
33  Am.  Dec.  715;  Landers  v.  Bolton,  20  Cal.  393. 

«  Harris  v.  Rickett,  4  Hurl.  &  N.  1. 

9  Edwards  v.  Insurance  Soc,  1  Q.  B.  Div.  503;  Bergin  v.  Williams,  138  Mass. 
544;  Barney  v.  Forbes,  118  N.  Y.  580,  23  N.  E.  890;  Blake  v.  Coleman,  22 
Wis.  415,  99  Am.  Dec.  .53;  Beer  v.  Aultman-Taylor  Co.,  32  Minn.  90,  19  N.  W. 
^■.88;  J^Iyers  v.  Munson,  65  Iowa,  423,  21  N.  W.  759;  COLBY  v.  DEARBORN, 
59  N.  H.  32G. 


390  INTERPRETATION   OF   CONTRACT.  (Cb.  10 

in  the  case  of  contracts  which  the  statute  of  frauds  requires  to  be 
expressed  in  writing.^" 

There  are  circumstances,  such  as  the  loss  or  inaccessibility  of  the 
written  contract,  in  which  parol  evidence  of  the  contents  of  a  document 
is  allowed  to  be  given,  but  this  is  a  part  of  the  general  law  of  evidence. 


SAME— EVIDENCE  AS  TO  FACT  OF  AGREEMENT. n 

216.    A    document    having   been   proved,    parol    evidence    is   admissible 
to  shoiv  that  it  is  not  in  fact  a  valid  agreement. 

Thus  far  we  have  dealt  with  the  mode  of  bringing  a  document 
purporting  to  be  an  agreement,  or  part  of  an  agreement,  before  the 
court.  Parol  evidence  is  always  admissible  to  show  that  the  document 
is  not  in  fact  a  valid  agreement.  It  may  be  shown,  for  instance,  that 
incapacity  of  one  of  the  parties,  want  of  genuine  consent  because  of 
mistake,  fraud,  etc.,^^  or  illegality  of  object,^^  made  the  agreement 
of  the  parties  unreal,  or  such  as  the  law  forbids  to  be  carried  out.  In 
case  of  a  simple  contract,  it  may  be  shown,  where  the  promise  only 
appears  in  writing,  that  no  consideration  was  given  for  the  promise.^* 

10  Ante,  p.  87. 

11  Following  substantially  Anson,  Cont.  (4th  Ed.)  241-243. 

12  Grand  Tower  &  C.  G.  R.  Co.  v.  Walton,  150  111.  428,  37  N.  E.  920;  Ewing 
V.  Wilson,  132  Ind.  223,  31  N.  B.  65,  19  L.  R.  A.  767;  Cooper  v.  Finke,  38 
Minn.  2,  35  N.  W.  469;  Anderson  v.  Walter,  34  Mich.  113;  Wanner  v.  Landis, 
137  Pa.  61,  20  Atl.  950;  Universal  Fashion  Co.  v.  Skinner,  64  Hun,  293,  19 
N.  Y.  Supp.  62;  Kranich  v.  Sherwood,  92  Mich.  397,  52  N.  W.  741;  Scroggin 
V.  Wood.  87  Iowa,  497.  54  N.  W.  437;  Ilicks  t.  Stevens,  121  111.  186,  11  N. 
E.  241;  Marston  v.  Insurance  Co.,  89  Me.  266,  36  Atl.  389,  56  Am.  St.  Rep. 
412;    ante,  p.  195. 

13  Allen  V.  Hawks,  13  Pick.  (Mass.)  79;  Friend  v.  Miller,  52  Kan.  139,  34 
Pao.  397,  39  Am.  St.  Rep.  340;  Buftendeau  v.  Brooks,  28  Cal.  642;  Beadles 
V.  McElrath,  85  Ky.  230,  3  S.  W.  152;  Totten  v.  U.  S.,  92  U.  S.  105,  23  L. 
Ed.  605;  New  England  Mortg.  Security  Co.  v.  Gay  (C.  C.)  33  Fed.  636;  Lewis 
V.  Wilioughby,  43  Minn.  307,  45  N.  W.  439;  Benicia  Agi-icultui-al  Works  v. 
Estes  (Cal.)  32  Pac.  938;   ante,  p.  254. 

14  As  to  the  conclusiveness  of  the  recital  of  consideration  in  a  written  con- 
ti-act  or  conveyance,  there  has  been  a  great  deal  of  conflict.  The  New  York 
court  held  in  a  leading  case  that  the  consideration  clause  in  a  conveyance 
is  only  prima  facie  evidence  of  a  consideration,  except  for  the  pui-pose  of 
giving  effect  to  the  operative  words  of  the  conveyance,  and  that  to  that  end 
alone  is  it  conclusive.  The  rule,  it  seems,  applies  to  all  written  contracts, 
and  is  the  prevailing  doctrine  in  this  country.  McCrea  v.  Purmort,  16  Wend. 
460,  30  Am.  Dec.  103.  See  Bolles  v.  Sachs,  37  Minn.  315,  33  N.  W.  862; 
Goodspeed  v.  Fuller,  46  Me.  141,  71  Am.  Dec.  572;  Rhine  v.  Ellen,  36  Cal. 
362;  Miller  v.  Edgorton,  38  Kan.  36,  15  Pac.  894;  Nichols,  Shepard  &  Co. 
V.  Burch,  128  Ind.  324,  27  N.  E.  737;  Barbee  v.  Barbw,  108  N.  C.  .581.  13  S. 
E.  215;    Id.,  109  N.  C.  299,  13  S.  E.  792;    Mobile  Sav.  Bank  v.  McDonnell, 


§  216)  RULES   RELATING   TO    EVIDENCE.  391 

In  case  of  a  deed,  want  of  consideration  cannot  ordinarily  be  shown, 
because  its  validity  does  not  depend  on  consideration,  but  on  its  form ; 
but,  where  fraud  or  undue  influence  is  alleged  against  the  validity  of 
the  deed,  the  absence  or  inadequacy  of  consideration  may  be  shown  in 
corroboration  of  other  evidence  tending  to  sustain  the  allegation. 

Apart  from  such  circumstances  as  these,  it  is  permissible  to  prove  a 
parol  condition  suspending  the  operation  of  the  contract;  and  this 
applies  both  to  deeds  and  simple  contracts.  A  deed,  for  instance,  may 
be  shown  to  have  been  signed,  or  to  have  been  delivered  to  a  third 
person  subject  to  the  happening  of  an  event  or  the  doing  of  an  act. 
In  the  latter  case,  until  the  event  happens,  or  the  act  is  done,  the  deed 
remains  an  escrow,  and  the  terms  upon  which  it  was  delivered  may  be 
proved  by  extrinsic  evidence;  but,  as  we  have  seen,  this  cannot  be 
where  the  deed  is  delivered  to  the  other  party  himself.^' 

So,  also,  with  simple  contracts  in  writing.  Evidence  may  be  given 
to  the  effect  that  a  document  purporting  to  be  a  contract  is  not  so  in 
fact.  It  may  be  dependent  upon  a  condition  not  expressed  in  the  docu- 
ment, so  that,  until  the  condition  happens,  the  parties  agree  that  the 
written  contract  is  to  remain  inoperative.  In  a  case  involving  this 
point,  the  law  was  stated  as  follows :  "The  production  of  a  paper 
purporting  to  be  an  agreement  by  a  party,  with  his  signature  attached, 
affords  a  strong  presumption  that  it  is  his  written  agreement;  and  if, 
m  fact,  he  did  sign  the  paper _animo__contrahendi^  the  terms  contained 
in  it  are  conclusive,  and  cannot  be  varied  by  parol  evidence.  But  in 
the  present  case  the  defense  begins  one  step  earlier.  The  parties 
met  and  expressly  stated  to  each  other  that  though  for  convenience  they 
would  then  sign  the  memorandum  of  the  terms,  yet  they  were  not  ta 
sign  it  as  an  agreement  until  Abernethie  was  consulted.  I  grant  the 
risk  that  such  a  defense  may  be  set  up  without  ground,  *  *  *  but, 
if  it  be  proved  that  in  fact  the  paper  was  signed  with  the  express 
intention  that  it  should  not  be  an  agreement,  the  other  party  cannot 
fix  it  as  an  agreement  upon  those  so  signing.  The  distinction  in  point? 
of  law  is  that  evidence  to  vary  the  terms  of  an  agreement  in  writing/ 


89  Ala.  434,  8  South.  137,  9  L.  R.  A.  615,  18  Am,  St.  Rep.  137;  Macomb  v. 
Wilkinson,  83  Midi.  48(3,  47  N.  W.  380;  Halpin  v.  Stone,  78  Wis.  183.  47 
N.  W.  177;  Louisville,  St  L.  &  T.  R.  Co.  v.  Neafus,  93  Ky.  53,  18  S.  W. 
1030;  Hall  v.  Solomon,  61  Conn.  470,  23  Atl.  876,  29  Am.  St.  Rep.  218;  Silvers 
V.  Potters,  48  N.  J.  Eq.  539,  22  Atl.  584;  Hill  v.  Wbidden,  158  Mass.  26.'. 
33  N.  E.  526;   Bristol  Sav.  Bank  v.  Stiger,  86  Iowa,  344,  53  N.  W.  205. 

IB  Ante,  p.  55;  Riciiards  v.  Day,  63  Ilxm,  635,  18  N.  Y.  Supp.  733;  Haworth 
V.  Norris,  28  Fla.  763,  10  South.  18;  Gregory  v.  Littlejohn,  25  Neb.  368,  41 
N.  AV.  253;  note  18,  infra.  Proof  that  parties  who  signed  a  bond  did  so 
on  condition  that  other  persons  named  therein  as  sureties  would  also  sign 
it  is  competent  to  show  tliat  it  was  never  completely  executed.  State  v. 
Wallis,  57  Ark.  64,  20  S.  W.  811. 


392  INTERPRETATION  OF  CONTRACT.  (Cb.  10 

is  not  admissible,  but  evidence  to  show  that  there  is  not  an  agreement 
'at  all  is  admissible."  ^* 


SAME— EVIDENCE  AS  TO  TERMS  OF  CONTRACT.it 

217.    Parol  evidence  as  to  the  terms  of  a  contract  whicli  appears  to  be 
comxilete  in  ivriting  is  inadmissible,  except 

(a)  To  prove  terms  xtrhicb  are  supplementary  or  collateral  to  so  much 

of  the  agreement  as  is  in  writing. 

(b)  To  explain  terms  of  the  contract  ivhich  need  explanation. 

(c)  To  introduce  a  custom  or  usage  into  the  contract. 

(d)  In  the  application  by  courts  of  equity  of  their  peculiar  remedies 

in  cases  of  mistake. 

The  admissibiHty  of  extrinsic  evidence  affecting  the  terms  of  a 
contract  is  narrowed  to  a  small  compass,  for,  as  we  have  already 
said,  it  is  the  general  rule  that  the  written  record  of  a  contract  must 
not  be  varied  or  added  to  by  verbal  evidence  of  what  was  the  inten- 
tion  of  the  parties.^ ^ 

16  Pym  V.  Campbell,  6  El.  &  BI.  370.  And  see  McFarland  v.  Sikes,  54  Conn. 
250,  7  Atl.  408,  1  Am.  St.  Rep.  Ill;  Wilson  v.  Powers,  131  Mass.  539;  Ware 
V.  Allen,  128  U.  S.  590,  9  Sup.  Ct  174,  32  L.  Ed.  5(33;  Juilliard  v.  Chaffee, 
92  N.  Y.  529;  REYNOLDS  v.  ROBINSON,  110  N.  Y.  654,  18  N.  E.  127;  West- 
man  V.  Krumweide,  30  Minn.  313,  15  N.  W.  255;  Lipscomb  v.  Lipscomb, 
32  S.  C.  243.  10  S.  E.  929;  Solenberger  v.  Gilbert's  Adm'r,  8G  Va.  778,  11 
S.  E.  789;  Humphreys  v.  Railroad  Co.,  88  Va.  431,  13  S.  E.  985;  Gibbons  v. 
Ellis,  83  Wis.  434,  53  N.  W.  701;  BLEWITT  v.  BOORUM,  142  N.  Y.  357, 
37  N.  E.  119,  40  Am.  St.  Rep.  GOO;  Burns  &  Smith  Lumber  Co.  v.  Doyle, 
71  Conn.  742,  43  Atl.  483,  71  Am.  St.  Rep.  235.  This  rule,  in  the  absence 
of  fraud,  does  not  permit  parol  evidence  of  an  agreement  contemporaneous 
with  a  written  contract,  such  as  a  note  or  bond,  which  has  been  completely 
executed  and  finally  delivered,  so  as  to  take  effect  that  the  obligee  or  promisee 
would  not  enforce  the  contract,  or  that  the  liability  of  the  obligor  or  promisor 
should  be  dependent  upon  a  condition  not  expressed  in  the  writing.  See 
note  17,  infra. 

17  Anson.  Cont.   (4th  Ed.)   243-251. 

18  Burnes  v.  Scott,  117  U.  S.  582,  6  Sup.  Ct.  865,  29  L.  Ed.  991;  Pierce  v. 
Tidwell,  81  Ala.  299,  2  South.  15;  Atiee  v.  Bartholomew.  69  Wis.  43,  33  N. 
W.  110,  5  Am.  St.  Rep.  103;  Bofinger  v.  Tuyes,  120  U.  S.  198,  7  Sup.  Ct 
529,  30  L.  Ed.  649;  De  Long  v.  Lee,  73  Iowa,  53.  34  N.  W.  613;  Gilbert  v. 
Plow  Co.,  119  U.  S.  491,  7  Sup.  Ct  305,  30  L.  Ed.  476;  Williams  v.  Kent 
67  Md.  350,  10  Atl.  228;  Conant  v.  Bank,  121  Ind.  323,  22  N.  E.  250;  Mer- 
chants' &  Farmei-s'  Nat  Bank  v.  McElwee.  104  N.  C.  305,  10  S.  E.  295; 
Harrow  Spring  Co.  v.  Harrow  Co.,  90  Mich.  147,  51  N.  W.  197,  30  Am.  St  Rep, 
421;  Gasper  v.  Heimbach,  53  Minn.  414,  55  N.  W.  559:  Viollette  v.  Rice, 
173  Mass.  82,  53  N.  E.  144;  Clark  v.  Mallory,  185  111.  227,  56  N.  E.  1099; 
Smith  V.  Bank,  89  Fed.  832,  32  C.  C.  A.  368.  The  legal  effect  of  a  written 
contract  is  as  much  within  the  protection  of  the  rule  as  its  language.  Bari-j' 
v.  liausom,  12  N.  Y.  464.     In  the  absence  of  fraud,  parol  evidence  is  not 


§  217)  RULES   RELATING    TO    EVIDENCE.  393 

Froof  of  Siipplevientary  or  Collateral  Terms. 

If  the  parties  to  a  contract  have  not  put  all  its  terms  in  writing,  parol 
evidence  of  the  supplementary  terms  is  admissible,  not  to  vary,  but  lo 
complete,  the  written  contract.^®  Thus,  where  a  written  contract  for 
the  sale  of  goods  mentions  the  price,  but  is  silent  as  to  the  terms  of 
payment,  the  terms  may  be  shown  by  parol  evidence.^"  And  a  sub- 
sequent agreement  changing  the  terms  of  a  written  contract  may  be 
shown  by  parol  evidence. ^^ 


admissible  to  show  that  the  obligee,  contemporaneously  with  the  execution 
of  a  bond,  promised  not  to  enforce  it  as  against  one  of  the  parties.  Towner 
V.  Lucas'  Ex'r,  13  Grat.  (Ya.)  705;  Barnett  v.  Barnett,  83  Va.  504,  2  S.  E. 
733;  Yeager  v.  Yeager  (Pa.  Sup.)  8  Atl.  579.  Nor,  where  a  written  contract 
has  been  fully  executed  and  delivered,  is  parol  evidence  admissible  of  an  un- 
derstanding that  it  should  not  be  operative  according  to  its  terms,  or  that 
the  liabilitj'  of  the  promisor,  absolute  on  the  face  of  the  instrument,  was  in- 
tended to  be  conditional.  McCormick  Harvesting  Mach.  Co.  v.  Wilson,  39 
Minn.  467,  40  N.  W.  571;  Marquis  v.  Lauretson,  76  Iowa,  23,  40  N.  W.  73; 
Meekins  v.  Newberry,  101  N.  C.  17,  7  S.  E.  655;  Thompson  v.  McKee,  5 
Dak.  172,  37  N.  W.  367;  Coapstick  v.  Bosworth,  121  Ind.  6,  22  N.  E.  772; 
Dexter  v.  Ohlander,  93  Aia.  441,  9  South.  361;  Engelhorn  v.  Reitlinger,  V12 
N.  Y.  76,  25  X.  E.  297,  9  L.  R.  A.  548;  Ziegler  v.  McFarland,  147  Pa.  607, 
23  Atl.  1045;  Osborne  v.  Taylor,  58  Conn.  439,  20  Atl.  605;  Harrison  v. 
Mon-ison,  39  Minn.  319,  40  N.  W.  66;  Burns  <&  Smith  Lumber  Co.  v.  Doyle, 
71  Conn.  742,  43  Atl.  483.  71  Am.  St.  Rep.  235.  Cf.  Clinch  Valley  Coal  & 
Iron  Co.  V.  Willing,  ISO  Pa.  165,  36  Atl.  737,  57  Am.  St.  Rep.  626.  The  rule 
excluding  parol  evidence  is  confined  to  the  parties  to  the  contract,  or  their 
privies;  and  it  does  not  apply  as  between  a  party  and  a  stranger.  Clapp 
V.  Banking  Co.,  50  Ohio  St.  528,  35  N.  E.  308;  Highstone  v.  Burdette,  61 
Mich.  54,  27  N.  W.  852;  Bruce  v.  Lumber  Co.,  87  Va.  381,  13  S.  E.  153,  24 
Am.  St  Rep.  657;  Fonda  v.  Burton.  63  Vt.  355.  22  Atl.  594;  Grove  v.  Rentch, 
26  Md.  367;  Clerihew  v.  Bank,  50  Minn.  538,  52  N.  W.  967;  First  Nat. 
P.ank  V.  Dunn,  55  N.  J.  Law,  404,  27  Atl.  908;  Marriner  v.  Dennison,  78  Cal. 
202,  20  Pac.  3S6. 

]»Jervis  v.  Berridge,  8  Ch.  App.  351;  Potter  v.  Hopkins,  25  Wend.  (N.  Y.) 
417;  Batterman  v.  Pierce,  3  Hill  (N.  Y.)  171;  Grierson  v.  Mason,  60  N.  Y. 
394;  Holt  v.  Pie,  120  Pa.  425.  14  Atl.  389;  Lyon  v.  Lenou,  106  Ind.  567,  7 
N.  E.  311;  Raj  nor  v.  Drew,  72  Cal.  307,  13  Pac.  866;  Reynolds  v.  Hassam, 
56  Vt.  449;  Coates  v.  Sangston,  5  Md.  121;  Walter  A.  Wood  Mach.  Co.  v. 
Gaertner,  55  :Mich.  4.53,  21  N.  W.  885;  Lash  v.  Parlin,  78  Mo.  391;  Bretto 
V.  Levine,  50  Minn.  168,  52  N.  W.  525:  Mobile  &  M.  Ry.  Co.  v.  Jurey,  111 
U.  S.  584,  4  Sup.  Ct.  566.  28  L.  Ed.  527;  Peabody  v.  Bemeut.  79  Mich.  47, 
44  N.  W,  416;   Bank  v.  Cooper,  137  U.  S.  473.  11  Sup.  Ct.  160,  34  L.  Ed.  759. 

2  0  Paul  V.  Owiiigs,  32  Md.  402;  Magill  v.  Stoddard,  70  Wis.  75,  35  N.  W. 
346.  Where  a  contract  specifies  no  time,  parol  evidence  of  a  contemporaneous 
agreement  as  to  time  of  payment  is  admissible.  Horner  v.  Horner,  14.5  Pa. 
2.ja  23  Atl.  441:    Sivers  v.  sivers,  97  Cal.  518,  32  Pac.  571. 

21  Coe  V.  Hobby.  72  N.  Y.  141.  147.  28  Am.  Rep.  120;  Kennebec  Co.  v. 
Augusta  Ins.  &  B.  Co.,  6  Gray  (Mass.)  204 ;  Quigley  v.  De  Haas.  98  Pa.  292 ; 
Siuith  v.  Lilley,  17  R.  I.  119,  20  Atl.  227:  Stalliugs  v.  Gottschalk,  77  Md. 
429,  26  -4tl.  524;  Baunon  v.  Aultman,  80  Wis.  307,  49  N.  W.  967,  27  Am.  St. 
Rep.  37;    WorreU  v.  Forsyth,   141   111.  22,   30  N.  E.  673. 


394  INTERPRETATION  OF   CONTRACT.  (Cll.  10 

Again,  evidence  may  be  given  of  a  verbal  agreement  collateral  to 
the  written  contract,  subjecting  it  to  a  term  unexpressed  in  its  con- 
tents ;  but  such  a  term  cannot  be  enforced  if  it  is  contrary  to  the  tenor 
of  the  writing.^^  "No  doubt,  as  a  rule  of  law,  if  parties  enter  into 
negotiations  affecting  the  terms  of  a  bargain,  and  afterwards  reduce 
it  into  writing,  verbal  evidence  will  not  be  admitted  to  introduce  addi- 
tional terms  into  the  agreement;  but,  nevertheless,  what  is  called  a 
'collateral  agreement,'  where  the  parties  have  entered  into  an  agree- 
ment for  a  lease,  or  for  any  other  deed  under  seal,  may  be  made  in 
consideration  of  one  of  the  parties  executing  that  deed,  unless,  of 
course,  the  stipulation  contradicts  the  terms  of  the  deed  itself.  I  quite 
agree  that  an  agreement  of  that  kind  is  to  be  rather  closely  watched, 
and  that  we  should  not  admit  it  without  seeing  clearly  that  it  is  sub- 
stantially proved."  ^' 

Explanation  of  Terms. 

Parol  evidence  is  also  admissible,  where  it  is  necessary  in  order  to 
explain  the  terms  of  a  written  contract.  Explanation  of  terms  may 
merely  amount  to  evidence  of  the  identiLy„Ql  the  parties  to  the  con- 
tract, as  where  two  persons  have  the  same  name,  or  where  an  agent 
has  contracted  in  his  own  name,  but  on  behalf  of  a  principal  whose 
name  or  whose  existence  he  failed  to  disclose.^*     Or,  again,  it  may  be 

22  Lindley  v.  Lacy,  17  C.  B.  (N.  S.)  .578;  Ayer  v.  Manufacturing  Co.,  147 
Mass.  4G,  IG  N.  E.  754;  Cliapin  v.  Dobson.  78  N.  Y.  74.  M  Am.  Rep.  512; 
Bonney  v.  Morrill,  57  Me.  3G8;  Walker  v.  France,  112  Pa.  203,  5  Atl.  208: 
Roberts  v.  Bonaparte,  73  Md.  191,  20  Atl.  918,  10  L.  R.  A.  689;  Palmer  v. 
Roath,  8G  Mich.  602,  49  N.  W.  590;  Durldn  v.  Cobleigh,  156  Mass.  108,  30 
N.  E.  474,  17  L.  R.  A.  270,  32  Am.  St.  Rep.  436 ;  Phoenix  Pub.  Co.  v.  Clothing 
Co.,  54  Minn.  205,  55  N.  W.  912;  Keen  v.  Beckman,  66  Iowa,  672,  24  N.  W. 
270. 

2  3  Erskine  v.  Adeane,  8  Cb.  App.  756. 

2  4  Wake  V.  Harrop,  6  Hurl.  &  N.  768;  Darrow  v.  Produce  Co.  (C.  C.)  57 
Fed.  463;  Mobberly  v.  Mobberly,  60  Md.  376;  Hartzell  v.  Crumb,  90  Mo. 
629,  3  S.  W.  59;  Simpson  v.  Dix,  131  Mass.  179;  Martin  v.  Smith,  65  Miss. 
1,  3  South.  33;  Wakelield  v.  Brown,  38  Minn.  361,  37  N.  W.  788,  8  Am.  St. 
Rep.  671;  Barkley  v.  Tarrant,  20  S.  C.  574,  47  Am.  Rep.  853;  Rumbough 
V.  Southern  Imp.  Co.,  106  N.  C.  461,  11  S.  E.  528;  Northern  Nat.  Bank  v. 
Lewis,  78  Wis.  475,  47  N.  W.  834;  Bartlett  v.  Remington,  59  N.  H.  364; 
Haskell  v.  Tukesbury,  92  Me.  551,  43  Atl.  500.  69  Am.  St.  Rep.  529;  First  Nat. 
Bank  v.  North,  2  S.  D.  480,  51  N.  W.  96.  The  writing,  however,  cannot  be 
contradicted  as  to  the  parties.  Parol  evidence,  for  instance,  is  not  admissible 
to  show  that  an  order  reading  "Sliip  to  me,"  and  signed  "G.  G.  Bauder," 
was  intended  to  be  the  order  of  the  firm  of  "George  G.  Bauder  &  Co."  Os- 
good V.  Bauder,  82  Iowa,  171,  47  N.  W.  1001.  An  agent  who  contracts  in 
his  own  name  cannot,  to  escape  liability,  show  that  he  intended  to  bind 
his  principal  and  not  himself.  Higgins  v.  Senior,  8  Mees.  &  W.  834 ;  Dexter 
V.  Ohlander,  93  Ala.  441,  9  South.  361;  Cream  City  Glass  Co.  v.  Friedlander, 
84  Wis.  53,  54  N.  W.  28,  21  L.  R.  A.  135,  36  Am.  St.  Rop.  805;  Brigham  v. 
Herrick,  173  Mass.  460,  53  N.  E.  906;    Tiffany,  Ag.  234,  356. 


§  '211)  KULES    RELATING   TO    EVIDENCE.  395 

a  description  of  the  subject-matter  of  a  contract  that  needs  explanation. 
Where,  for  instance,  persons  agreed  to  buy  from  another  certain  wool, 
which  was  described  as  "your  wool,"  and  the  right  of  the  seller  to 
introduce  evidence  of  the  quality  and  quantity  of  the  wool  was  dis- 
puted, the  evidence  was  held  admissible.^ ° 

Again,  it  may  be  necessary  to  explain  some  word  or  clause  in  the 
writing,  not  describing  the  subject-matter  of  the  contract,  but  describe, 
ing  the  amount  and  character  of  the  responsibility  which  one  of  the 
parties  takes  upon  himself  as  to  the  conditions  of  the  contract.  Where, 
for  instance,  a  person  accepted  an  order  upon  him  by  one  who  had 
contracted  to  do  certain  work  for  him,  "to  be  paid  out  of  the  last 
installment,"  evidence  was  admitted  to  show  that  the  meaning  of  the 
words  quoted  was  that  the  order  was  only  to  be  paid  out  of  the  last 
payment  to  a  certain  person  provided  for  in  the  contract,  and  that,  if 
that  person  did  not  fulfill  his  contract  so  that  the  last  payment  would 
become  due  and  payable,  there  should  be  no  liability  on  the  order.^® 
So,  also,  where  a  vessel  is  warranted  "seaworthy,"  a  house  promised 
to  be  kept  "in  tenantable  repair,"  or  a  thing  undertaken  to  be  done 
in  a  "reasonable  manner,"  parol  evidence  is  admissible  to  show  the 
application  of  these  phrases  to  the  subject-matter  of  the  contract,  so 
■as  to  ascertain  the  intention  of  the  parties.  In  every  policy  of  marine 
insurance  there  is  an  implied  warranty  by  the  assured  that  the  vessel 
is  "seaworthy."  In  an  action  on  such  a  policy,  evidence  was  held 
admissible  to  show  that  the  word  "seaworthy"  was  understood  in 
a  modified  sense  with  reference  to  the  particular  vessel  and  voyage.*^ 

Cases  of  the  sort  we  have  just  described  are  called  cases  of  latent 


25  Macdonald  v.  Longbottom,  1  El.  &  El.  977.  And  see  Bulkley  v.  Devine, 
127  111.  406,  20  N.  E.  IG,  3  L.  R.  A.  330;  Clark  v.  Coffin  Co.,  125  Ind.  277, 
25  N.  E.  288;  Thompson  v.  Stewart,  60  Iowa,  223,  14  N.  W.  247;  Thornell 
V.  City  of  Brockton,  141  Mass.  151,  0  N.  E.  74;  Busby  v.  Bush,  79  Tex.  050, 
15  S.  W.  038;  Thacker  v.  Howell  (Ky.)  20  S.  W.  719;  Rapley  v.  Klugh,  40 
S.  C.  134,  18  S.  E.  080;  Merriam  v.  United  States,  107  U.  S.  437,  2  Sup.  Ct. 
536.  27  L.  Ed.  531;  Reed  v.  Insurance  Co.,  95  U.  S.  23,  24  D.  Ed.  348;  New 
Ensland  Dressed  M.  &  W.  Co.  v.  Standard  W.  Co.,  105  Mass.  328,  43  N. 
E.  112,  52  Am.  St.  Rep.  516;  Brown  v.  Markland,  16  Utah,  360,  52  Pac.  597, 
67  Am.  St.  Rep.  629. 

28  Proctor  V.  Hartigan,  143  Mass.  402,  9  N.  E.  841.  And  see  Manchester 
Paper  Co.  v.  Moore,  104  N.  Y.  680,  10  N.  E.  861;  Wickes  Bros.  v.  Electi'ic 
Light  Co.,  70  Mich.  322,  38  N.  W.  299;  Rhodes  v.  Wilson,  12  Colo.  65,  20 
Pac.  746;  Roberts  v.  Bonaparte,  73  Md.  191,  20  Atl.  918,  10  L.  R.  A.  550; 
Clay  V.  Field,  138  U.  S.  464,  11  Sup.  Ct.  419,  34  L.  Ed.  1044;  Macdonald  v. 
Dana,  154  Mass.  152,  27  N.  E.  993;  Fawkner  v.  Wall-Paper  Co.  (Iowa)  49 
N.  W.  1003 ;  Hurd  v.  Bovee,  54  Hun,  035,  7  N.  Y.  Supp.  241 ;  Id.,  134  N.  Y. 
595,  31  N.  E.  624;  Durr  v.  Chase,  161  Mass.  40,  36  N.  E.  741;  Halladay 
-V.  Hess,  147  111.  5S8,  35  N.  E.  ;^80. 

2T  Burges  v,  Wickham,  3  Best  &  S.  669.  See  Payne  v.  Haine,  10  Mces.  & 
W.  541. 


39G  INTERPRETATION  OF  CONTRACT.  (Cll.  10 

ambiguity,  as  distinguished  from  patent  ambiguities,  where  words  are 
omitted  or  .contradict  one  another.  In  the  latter  cases  explanatory 
evidence  is  not  admissible.  Thus,  where  a  bill  of  exchange  was  drawn 
for  one  sum  in  words,  and  the  figures  at  the  top  were  for  a  larger 
amount,  evidence  was  not  admitted  to  show  that  the  bill  was  intended 
to  be  drawn  for  the  latter  amount.^® 

Evidence  of  Custom  and  Usage. 

Evidence  of  the  custom  or  usage  of  a  trade,  or  of  a  particular  locality, 
is  admissible,  though  it  may  add  a  term  to  a  contract,  or  may  attach 
a  special,  and  sometimes  unnatural,  meaning  to  one  of  the  terms  ex- 
pressed.-* 

Same — To  Add  a  Term  to  the  Contract. 

As  an  instance  of  a  usage  which  annexes  a  term  to  a  contract,  we 
may  cite  the  warranty  of  seaworthiness  which  by  custom  is  always 
implied  in  a  contract  of  marine  insurance,  though  not  specially  men- 
tioned. So,  also,  in  a  case  of  agricultural  customs,  a  usage  that  the 
tenant,  quitting  his  farm  at  Christmas,  was  entitled  to  reap  grain  sown 
the  preceding  autumn,  was  held  in  England  to  be  annexed  to  his  lease, 
though  the  lease  was  under  seal,  and  was  silent  on  the  subject. ^°  And 
in  a  New  York  case  it  was  held  that,  where  a  contract  for  excavating 
city  lots  was  silent  as  to  whom  the  sand  and  dirt  taken  out  should 
belong  to,  a  well-known  custom  by.  which  it  belonged  to  the  excavator, 
and  not  to  the  owner  of  the  lots,  might  be  shown  as  evidence  of  the 
contract.^^ 

The  principle  on  which  usages  are  so  annexed  has  been  said  to 
rest  on  the  "presumption  that  in  such  transactions  the  parties  did  not 
mean  to  express  in  writing  the  whole  of  the  contract  by  which  they 
intended  to  be  bound,  but  to  contract  with  reference  to  those  known 
usages."  ^^ 

Same — To  Explain  Terms. 

Proof  of  custom  and  usage  is  also  admissible  to  explain  words  and 
phrases  in  contracts,  where  they  are  commercial  terms,  or  otherwise 

2  8  Sanderson  v.  Piper,  5  Bing.   N.  C.  425. 

2»  Wilcox  V.  Wood,  9  Wend.  (X.  Y.)  34G;  Rindskoff  v.  Barrett,  14  Iowa, 
101;  Totter  v.  Morland.  3  Cush.  (Mass.)  384;  Sampson  v.  Gazzan,  6  Port, 
(Ala.)  123,  30  Am.  Dec.  578;  Thompson  v.  Brannin,  94  Ky.  490,  21  S.  W. 
1057;  Swift  Iron  Works  v.  Dewey,  37  Ohio  St.  242;  Steamboat  Albatross 
V.  Wayne,  IG  Ohio.  513;  Newhall  v.  Appleton,  114  N.  Y.  140,  21  N.  E.  105, 
3  D.  K.  A.  859;  Patterson  v.  Crowther.  70  Md.  124,  16  Atl.  531;  Brown 
Chemical  Co.  v.  Atkinson,  91  N.  C.  389;  McCuUough  v.  Hellwig.  0(5  Md. 
2(!9,  7  Atl.  455;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755;  Donovan  v. 
Standard  Oil  Co.,  155  N.   Y.  112,  49  N.  E.  078. 

80  Wigglesworth  v.   Dollison,  1   Smith.   Lead.   Cas.   594. 

81  Cooper  V.  Kane,  19  Wend.  (N.  Y.)  38<5,  32  Am.  Dec.  512.  And  see  Hewitt  v. 
Lumber  Co.,  77  Wis.  548.  4<j  N.  W.  822. 

82  Hutton  V.  Warren,  1  Mecs.  &  W.  4GG;  Appleman  v.  Fisher,  34  Md.  540. 


I 


§  217)  RULES   RELATING    TO    EVIDENCE.  397 

subject  to  known  customs.  The  principle  on  which  such  explanation 
is  admitted  has  been  said  to  be  "that  words  perfectly  unambiguous  in 
their  ordinary  meaning  are  used  by  the  contractors  in  a  different  sense 
from  that.  *  *  *  jj^  such  cases  the  evidence  neither  adds  to,  nor 
qualifies,  nor  contradicts  the  written  contract;  it  only  ascertaing_it. by 
expounding  the  language."  ^^  As  illustrating  this  rule,  in  commer- 
cial contracts  in  the  case  of  charter  parties  in  which  the  days  allowed 
for  unloading  the  ship  are  to  commence  "on  arrival"  at  the  port  of 
discharge,  evidence  may  be  given  to  show  what  is  commonly  under- 
stood to  be  the  port ;  for  some  ports  are  of  large  area,  and,  by  custom 
"arrival"  is  understood  to  mean  arriving  at  a  .particular  spot  in  the 
port.^*  Another  illustration  is  a  case  in  which  a  covenant  by  the 
lessee  of  a  rabbit  warren  that  he  would  leave  10,000  rabbits  on  the 
warren  was  explained  by  evidence  of  a  usage  of  the  locality  to  mean 
12,000,  because  1,000  meant  1,200.^"^ 

Closely  connected  with  this  principle  is  the  admissibility  of  expert 
testimony  to  explain  terms  of  art  or  technical  phrases  when  used  in 
documents.^" 

Same — Requisites  of  Custom  or  Usage. 

In  order  that  a  custom  or  usage  may  affect  a  contract,  either  bv 
adding  or  explaining  terms,  it  must  meet  certain  requirements. 

In  the  first  place,  the  usage  must  have__b£en  established  at  the  time 
the  contract  was  made.  It  need  not  have  existed  for  any  particular 
length  of  time,  but  it  must  have  been  recognized  as  an  existing  rule, 
not  only  up  to  and  at  the  date  of  the  contract,  but  for  a  sufficient  time 
before   the   contract  to   have   become  generally   known. ^'^     This   rule 

33  Brown  v.  Byrne,  3  El.  &  Bl.  703,  716.  And  see  Atkinson  v.  Truesdell, 
127  N.  y.  230,  27  N.  E.  844;  Myers  v.  Tibbals,  72  Cal.  278,  13  Pac.  <J'Jo; 
Susquehanna  Fertilizer  Co.  v.  White,  6G  Md.  444,  7  Atl.  802.  59  Am.  Hop. 
ISO;  Packard  v.  Van  Schoick,  58  111.  79;  Long  v.  Davidson,  101  N.  C.  170, 
7  S.  E.  758;  Evans  v.  Manufacturing  Co.,  118  Mo.  548,  24  S.  W.  175;  Calla- 
han V.  Stanley,  57  Cal.  47G;  Wood  v.  Allen,  111  Iowa,  97,  82  N.  W.  451; 
SEYMOUR  V.  ARMSTRONG,  02  Kan.  720,  04  Fac.  012. 

34  Nordon  Steam  Co.  v.  Dempsey.  1  C.  P.  Div.  654. 

35  Smith  V.  Wilson,  3  Barn.  &  Adol.  728.  And  see  SOUTIER  v.  KELLER- 
MAN,  18  Mo.  509;  McCuUough  v.  Ashbridge,  155  Pa.  106,  26  Atl.  10;  Ilinton 
V.  Locke,  5  Hill  (N.  Y.)  437.  But  see  Sweeney  v.  Thomason,  9  Lea  (Tenn.) 
359,  42  Am.  Rep.  676;  Wilkinson  v.  Williamson,  76  Ala.  163;  Barlow  v. 
Lambert,  28  Ala.  704,  65  Am.  Dec.  374;    post,  p.  399. 

36  Hill  V.  Evans,  31  L.  J.  Ch.457;  Dana  v.  Fielder,  12  N.  Y.  40,  62  Am. 
Dec.  130;  Fruin  v.  Railway  Co.,  89  Mo.  397,  14  S.  W.  557;  Gauch  v.  Insur- 
ance Co.,  88  111.  251,  30  Am.  Rep.  554;  Jones  v.  Andor.son,  82  ALa.  302,  2 
South.  911;  Welsh  v.  Huckestein,  152  Pa.  27,  25  Atl.  138;  City  of  Elgin  v, 
Joslyn,  136  111.  525,   26  N.   E.   1090. 

3T  Adams  v.  Otterback,  15  How.  539,  14  D.  Ed.  805;  Wilson  v.  Bauman. 
SO  111.  493;  Packard  v.  Van  Schoick,  58  111.  79;  Ulmer  v.  Famsworth.  80 
Me.    500,    15    Atl.    65;     Hall    v.    Storrs,    7    Wis.    253;     Ambler    v.    Phillips, 

-rw tr^     u<     K  1 


^. 


ytif- 


398  INTERPRETATION  OF  CONTRACT.  (Ch.  10' 

that  the  usage  must  have  been  established  includes  several  other  rules 
which  have  sometimes  been  stated  separately,  namely,  that  it  must 
have  been  uniform  and  certain, ^^  continued,^®  and  peaceable  and  ac- 
quiesced in.*° 

Another  rule  which  is  included  in  this  is  that  a  usage  must  be 
_g.£neral.  If  it  is  not  so,  it  cannot  be  regarded  as  obligatory  on  the 
parties  unless  it  is  expressly  shown  that  they  knew  of  it,  and  con- 
tracted with  reference  to  it.*^  A  particular  bank,  for  instance,  could 
not  alone,  by  adopting  a  rule  governing  its  own  business,  thereby 
establish  a  usage  which  would  be  obligatory  on  all  persons  dealing 
with  it.*^  It  might  be  established,  however,  by  all  the  banks  in  a 
certain  city,  or  all  the  tradesmen  in  a  particular  line  of  business. 
Though  confined  to  a  single  city,  it  would  be  sufficiently  general  to  be 
obligatory  on  all  persons  in  that  city.*^  Even  here,  however,  it  would 
scarcely  be  binding  on  persons  living  at  a  distance,  unless  it  were 
shown  affirmatively  that  they  knew  of  it.** 

It  is  a  general  rule  that  the  usage  must  have  been_knowiu4©-the 
parties;  *°    but,  if  a  usage  is  established  and  is  general,  it  is_presum€4 

].32  Pa.  1G7,  19  Atl.  71;  Thompson  v.  Hamilton.  12  Pick.  (Mass.)  425,  23 
Am.  Dec.  619:  Smitti  v,  Wright,  1  Caines  (N.  Y.)  43,  2  Am.  Dec.  162;  Cooper 
V.  Berry,  21  Ga.  526,  6  Am.  Dec.  468;    Buford  v.  Tuclver.  44  Ala.  89. 

3  8  Foley  V.  Mason,  6  Md.  37;  Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  641; 
Vos  V.  Robinson,  9  Johns.  (N.  Y.)  192;  Oelricks  v.  Ford,  23  How.  49,  16 
L.  Ed.  534;  Minis  v.  Nelson  (C.  C.)  43  Fed.  777;  Illinois  Masons'  Benevolent 
Soc.  V.  Baldwin,  86  111.  479;  Smith  v.  Hess,  83  lowi,  238.  48  N.  W.  1030; 
Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  (Mass.)  417;  The  Harbinger  (D.  C.) 
50  Fed.  941;  Desha  v.  Holland,  12  Ala.  513,  46  Am.  Dec.  261;  Wallace  v. 
Morgan,  23  Ind.  399. 

39  Johnson  v.  Stoddard,  100  Mass.  306;  Michigan  Cent.  R.  Co.  v.  Coleman, 
28  Mich.  440;  Brent  v.  Cook,  12  B.  Mon.  (Ky.)  267;  Walker  v.  Barron,  6 
Minn.  508  (Gil.  353). 

40  Dixon  V.  Dunham.  14  111.  324;  Strong  v.  Railroad  Co.,  15  Mich.  205, 
93  Am.  Dec.  184;    Mc:\Iasters  v.  Railroad  Co.,  69  Fa.  374,  8  Am.  Rep.  264. 

41  Patterson  v.  Crowther,  70  Md.  124,  16  Atl.  531;  Miller  v.  Moore,  83  Ga. 
684,  10  S.  E.  360,  6  L.  R.  A.  374,  20  Am.  St.  Rep.  329;  Lamb  v.  Henderson, 
63   Mich.   302.   20   N.   W.   732. 

42  Adams  v.  Otterback,  15  How.  539,   14  L.  Ed.  805. 

43  Renner  v.  Bank,  9  Wheat.  587,  6  L.  Ed.  166 ;  Mills  v.  Bank,  11  Wheat 
431,  6  L.  Ed.  512. 

44  German  American  Ins.  Co.  v.  Commercial  Fire  Ins.  Co.,  95  Ala.  469, 
11  South.  117,  16  L.  R.  A.  291;  Chateaugay  Ore  &  Iron  Co.  v.  Blake,  144  U. 
S.  476,  12  Sup.  Ct  731,  36  L.  Ed.  510;  Simon  v.  Johnson,  101  Ala.  368,  13 
South.  491. 

4  5  Bliven  v.  Screw  Co.,  23  How.  420,  16  L.  Ed.  510;  Irwin  v.  Williar,  110 
U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Dawson  v.  Kittle,  4  Hill  (N.  Y.) 
107;  Martin  v.  Hall,  26  Mo.  386;  Martin  v.  Maynard,  16  N.  H.  165;  Mun-ay 
V.  Brooks,  41  Iowa,  45;  Sugart  v.  Mays,  54  Ga.  .")54;  Janney  v.  Boyd,  30 
Minn.  319,  15  N.  AV.  308;  Scott  v.  Whitney,  41  Wis.  504;  Dodge  v.  Favor, 
15  Gray  (Ma.ss.)  82;  Sawtedle  v.  Drew,  122  Mass.  228;  Marshall  v.  i'erry, 
67  Me.  78. 


§  217)  RULES   RELATING   TO    EVIDENCE.  390 

to  have  been  known  to  them,  and  is  oljhg-atory  without  affirmative 
proof  of  knowledge,  and  even  in  case  of  ignorance. *°  If  it  is  not  a 
general  usage,  then  it  must  be  affirmatively  shown  that  the  parties  had 
knowledge  of  the  usage,  and  contracted  with  reference  to  it.*^  In 
order  that  a  usage  may  be  binding,  it  must  have  been  actually  or  pre- 
sumptively known  to  both  of  the  parties,  and  not  merely  to  the  party 
who  is  sought  to  be  charged  by  it.  Want  of  knowledge  of  a  local  usage 
on  the  part  of  one  of  them  shows  that  it  could  not  have  entered  into 
the  contract.*^ 

It  is  also  essential  that  a  usage  shall  be  consistent  with  rules  of  law, 
for  "a  universal  usage  cannot  be  set  up  against  the  general  law."  ** 
If  it  is  inconsistent  with  any  rule  of  the  common  law,°°  or  with  any 
statute,'^  or  is  contrary  to  public  policy, ^^  it  cannot  be  recognized.  A 
usage,  however,  is  not  contrary  to  rules  of  law  in  this  sense,  merely 
because  it  makes  the  law  applicable  to  the  particular  contract  different 
from  what  it  would  be  if  the  usage  were  not  imported  into  the  con- 
tract. This  is  generally  the  object  and  the  natural  effect  of  proving 
a  usage. 

46  Walls  V.  Bailey,  49  N.  Y.  4G4,  10  Am.  Rep.  407;  Bailey  t.  Bensley,  87 
111.  556;  Blake  v.  Stump,  73  Md.  IGO,  20  Atl.  988,  10  L.  R.  A.  103;  Carter 
V.  Coal  Co.,  77  Pa.  286;  Ford  v.  Tirrell,  9  Gray  (Mass.)  401,  69  Am.  Dec. 
2!)7;  Howard  v.  Walker,  92  Tenii.  452,  21  S.  W.  897;  Austrian  v.  Springer, 
94  Mich.  343,  54  N.  W.  50 ;  Hostetter  v.  Park,  137  U.  S.  30,  11  Sup.  Ct  1,  34 
L.  Ed.  568. 

47  Chateaugay  Ore  &  Iron  Co.  v.  Blake,  144  U.  S.  476,  12  Sup.  Ct  731. 
36  L.  Ed.  510;  Sleght  v.  Hartshorne,  2  Johns.  (N.  Y.)  532;  Allen  v.  Bank, 
120  U.  S.  20,  7  Sup.  Ct.  460,  30  L.  Ed.  573;  Pennell  v.  Transportation  Co., 
94  Mich.  247,  53  N.  W.  1049;  Brunnell  v.  Sawmill  Co.,  86  Wis.  587,  57  N.  W. 
364. 

48  Nonotuck  Silk  Co.  v.  Fair,  112  Mass.  354;  Chateaugay  Ore  &  Iron  Co. 
V.  Blake,  144  U.  S.  476,   12  Sup.   Ct.   731,  36  L.  Ed.   510. 

49  Meyer  v.   Dremer,   11   C.  B.   (N.   S.)  646.- 

60  First  Nat  Bank  v.  Taliaferro,  72  Md.  164,  19  Atl.  364;  Dickinson  t. 
Gay,  7  Allen  (Mass.)  29,  83  Am.  Dec.  656;  Iledden  v.  Roberts,  134  Mass. 
38,  45  Am.  Rep.  276;  Tucker  v.  Smith,  68  Tex.  473,  3  S.  W.  671;  Inglebright 
V.  Hammond,  19  Ohio,  337,  53  Am.  Dec,  430;  Globe  Milling  Co.  v.  Elevator 
Co.,  44  Minn.  153,  46  N.  W.  306;    Marshall  v.  I'erry,  67   Me.  78. 

61  Colgate  V.  Pennsylvania  Co.,  102  N.  Y.  120,  6  N.  E.  114:  Maury  v.  Iron 
Co.,  9  Paige  (N.  Y.)  188;  Cayzer  v.  Taylor,  10  Gray  (Mass.)  274.  09  Am.  Dec. 
317;  Cutler  v.  Howe,  122  Mass.  541 ;  Mansfield  v.  Inhabitants,  15  Gray  (Mass.) 
149 ;  Godcharles  v.  Wigeman,  113  Pa.  431,  6  Atl.  354 :  McCrary  v.  McFarland, 
93  Ind.  466.  Proof  of  usage  cannot  give  a  different  meaning  to  terms  tlian 
that  given  by  statute.  Green  v.  Moffett,  22  Mo.  529 ;  Rogers  v.  Allen,  47  N.  H. 
529.  Nor  can  proof  of  usage  change  the  statutory  duties  of  an  officer.  Scrib- 
ner  v.  Town  of  Hollis,  48  N.  H.  30;  Delaplaue  v.  Crenshaw,  15  Grat  (Va.) 
457 ;  Frazier  v.  Warfleld,  13  Md.  279.  Nor  can  violation  of  usury  laws  be  jus- 
tified by  usage.  Gore  v.  Lewis,  109  N.  C.  539,  13  S.  E.  909 ;  Dunham  v.  Gould, 
16  Johns.  (N.  Y.)  367,  8  Am.  Dec.  321 ;  Greene  v.  Tyler,  39  Pa.  361. 

6  2  Raisin  v.  Clark,  41  Md.  158,  20  Am.   Rep.  (M. 


400  INTERPRETATION  OF  CONTRACT.  (Cll.  10 

A  usag-e  cannot  be  set  up  to  affect  a  contract  if  it  is_unreasonable 
or  oppressive/^  A  usage  of  agents,  for  instance,  in  collecting  drafts 
for  absent  parties,  to  surrender  them  to  the  drawees  at  maturity,  and, 
upon  mere  confidence  in  the  good  cr^edit  of  the  drawees,  to  take  in 
exchange  their  checks  upon  banks,  was  held  ineffectual  because  unrea- 
sonable.^* 

Finally,  the  usage  must  not  be  inconsistent  with  the  terms  of  the 
contract,  for  it  is  optional  with  the  parties  to  exclude  the  usage  if  they 
think  fit,  and  to  frame  their  contract  so  as  to  be  repugnant  to  its  opera- 
tion.°'' 

In  Equity. 

In  the  application  of  equitable  remedies,  the  granting  or  reiusaiof 
specific  performance,  the  reformation  of  documents,  or  their  rescission 
and  "canceifetrOrf,"  extrinsic  evidence  is  much  more  freely  ..admitted 
than  at  Jaw.  For,  Instance,  though,  as  we  have  seen,  a  man  is  ordi- 
narily bound  by  the  terms  of  an  offer  unequivocally  expressed,  and 
accepted  in  good  faith,  evidence  has  been  admitted  to  show  that  the 
offer  was  made  by  inadyntence.  Thus,  where  a  person,  immediately 
after  dispatching  an  offer  to  sell  several  plots  of  land  for  a  round  sum, 
discovered  that  by  a  mistake  in  adding  up  the  prices  of  the  plots  he  had 
oft'ered  them  for  less  than  he  intended,  and  informed  the  other  party 
of  the  mistake  without  delay,  but  not  before  the  latter  had  concluded 
the  contract  by  acceptance,  the  court  allowed  the  mistake  to  be  shown, 
and  refused  specific  performance,  leaving  the  person  to  whom  the 
offer  was  made  to  such  remedy  by  way  of  damages  as  he  could  obtain 
in  the  common-law  courts."^ 

53  Seccomb  v.  Insurance  Co.,  10  Allen  (Mass.)  305;  Blackburn  v.  Mason, 
4  Reports,  297,  68  Law  T.  510;  Minis  v..  Nelson  (C.  C.)  43  Fed.  777;  Central 
R.  Co.  V.  Anderson,  58  Ga.  393;  Pennsylvania  Coal  Co.  v.  Sanderson,  94  Pa. 
302;  Boardman  v.  Spooner,  13  Allen  (Mass.)  353,  90  Am.  Dec.  196;  Strong 
V.  Railroad  Co.,  15  Mich.  206,  93  Am.  Dec.  184;  Anderson  v.  Whitaker,  97 
Ala.  690,  11  South.  919;  Nolte  v.  Hill,  36  Ohio  St.  186;  Rosenstock  v.  Tormey, 
32  Md.  169,  3  Am.  Rep.  125;  Haskins  v.  Warren,  115  Mass.  514;  Merchants' 
Ins.  Co.  V.  Prince,  50  IMinn.  53,  52  N.  W.  131,  36  Am.  St.  Rep.  626. 

64  Whitney  v.  Esson,  99  Mass.  308,  96  Am.  Dec.  762. 

55  Blackett  v.  Assurance  Co.,  2  Cromp.  &  J.  244;  BROWN  v.  FOSTER,  113 
Mass.  136,  18  Am.  Rep.  463;  Randolph  v.  Halden,  44  Iowa,  327;  Greenstine 
V.  Borchard.  50  Mich.  434,  15  N.  W.  540,  45  Am.  Rep.  51;  Seavey  v.  Shurick, 
no  Ind.  494,  11  N.  E.  597;  Wolff  v.  Campbell,  110  Mo.  114,  19  S.  W.  622; 
O'Donohue  v.  Leggett,  134  N.  Y.  40,  31  N.  E.  269;  Baltimore  Baseball  Club 
&  Kxhibition  Co.  v.  Pickett,  78  Md.  375,  28  Atl.  279,  22  L,.  R.  A.  a90,  44  Am. 
St.  Rep.  304;  Holloway  v.  McNear,  81  Cal.  154,  22  Pac.  514;  Gilbert  v.  Mc- 
Ginnis,  114  111.  28,  28  N.  E.  382;  Barnard  v.  Kellogg,  10  Wall.  383,  19  L.  Ed. 
987;  Partridge  v.  Insurance  Co.,  15  Wall.  573,  21  L.  Ed.  229;  Globe  Milling 
Co.  V.  Elevator  Co.,  44  Minn.  153,  46  N.  W.  306;  Menage  v.  Rosenthal,  175 
Mass.  358,  56  N.  E.  579. 

6  8  W'ebster  v.  Cecil,  30  Bcav.  62,  See  McCusker  v.  Spier,  72  Conn,  628, 
45  Atl.  1011. 


i- 


§  217)  RULES    RELATING   TO    EVIDENCE.  401 

Again,  where  a  parol  contract  has  been  reduced  to  writing-,  or  where 
a  contract  for  a  sale  or  lease  of  lands  has  been  performed  by  the 
execution  of  a  lease  or  conveyance,  evidence  may  be  admitted  to  show 
that  2__tenri_  of , the . contract  is  not  the  real  agreeraent-of-the  parties;- 
and  this  is  done  for  two  purposes,  and  under  two  sets  of  circumstances. 

Where  a  contract  has  been  reduced  to  writing,  or  a  deed  executed, 
in  pursuance  of  a  previous  agreement,  and  the  writing  or  deed,  owing 
to  mutual  mistake,  fails  to  express  the  intention  of  the  parties,  a  court 
of  equity  will  rectify  or_reform  the  written  instrument  in  accordance 
with  their  true  intent;  and  this  may  be  done  even  though  the  parties 
cannot  be  placed  in  the  position  they  occupied  when  the  contract  was 
made.^^  In  such  cases,  extrinsic,  and,  if  necessary,  parol  evidence  will 
be  admitted  to  show  the  true  intent  of  the  parties.  There  must  have 
been  a  genuine  agreement;  ^^  its  terms  must  have  been  expressed 
under  mutual  mistake ;  '^^  and  the  evidence  must  be  clear  and  con- 
vincing. 

Where  the  mistake  was  not  mutual,  extrinsic  evidence  is  only  admit- 
ted in  certain  cases  which  appear  to  be  regarded  as  having  something 
of  the  character  of  fraud, ®°  and  is  admitted  for  the  purpose  of  offering 
to  the  party  seeking  to  profit  by  the  mistake  an  option  of  abiding  by  a 
corrected  contract,  or  having  the  contract  annulled.  Instances  of  such 
cases  are  where  the  mistake  of  one  party  was  caused  by  the  other, 
though  not  with  any  fraudulent  intent,  and  was  known  to  him  before 
his  position  had  been  affected  by  the  contract.®^  In  these  cases  it  is 
probable  that  the  court  will  not.  reform  or  correct  tlie  instrument  unless 
the  parties  can  be  placed  in  statu  quo. 


67  Beauchamp  t.  Winn,  L.  R.  6  H.  L.  232;   Murray  v.  Parker,  19  Beav.  305. 

B8  MacKensie  v.   Coulson,    L.  R.   8  Eq.  368. 

es  Fowler  v.  Fowler,  4  De  Gex  &  J.  250;  Page  t.  Higsrins,  150  Mass.  27, 
22  N.  E.  03,  5  L.  R.  A.  1.52;  Chute  V.  Quincy,  156  Mass.  189,  30  N.  E.  550; 
Purvines  v.  Han-ison,  151  111.  219,  37  N.  E.  705;  Green  v.  Stone,  54  N.  J. 
Eq.  387,  34  Atl.  1099,  55  Am.  St.  Rep.  577;  Spurr  v.  Home  Ins.  Co.,  40  Minn. 
424,  42  N.  W.  206;  King  v.  Holbrook,  38  Or.  452,  63  Pac.  651;  Eaton,  Eq. 
620. 

60  Equity  has  jurisdiction  to  reform  where  there  is  mistake  on  one  side 
caused  by  "fraud  on  the  other.  Fishack  v.  Ball,  34  W.  Va.  (-44.  12  S.  E.  85f>; 
Bush  V.  Merriman,  87  Mich.  200,  49  N.  W.  86(5 ;  Kyle  v.  Fehley,  81  Wis.  67, 
51  N.  W.  257,  29  Am.  St.  Rep.  866:  Suell  v.  Insurance  Co.,  98  U.  S.  85,  91, 
25  L.  Ed.  52 ;    Kleinsorge  v.  Rohse,  25  Or.  51,  34  Pac.  874. 

61  Garrard  v.  Frankel,  30  Beav.  445;  Harris  v.  Pepperell,  L.  R.  5  Eq.  1; 
Moffett,  H.  &  C.  Co.  y.  City  of  Rochester,  178  U.  S.  373,  20  Sup.  Ct.  957,  44 
L.  Ed.  1108.     Cf.  Trenton  Terra  Cotta  Co.  v.  Shingle  Co.  (C.  C.)  80  Fed.  46. 

Claek  Cont.  (2d  Ed.)— 26 


•" 


r' 


402  INTERPRETATION  OF  CONTRACT.  (Cb.  10 

RULES   OF  CONSTRUCTION. 

Thus  far  we  have  dealt  with  the  admissibility  of  evidence  in  relation 
to  contracts  in  writing.  We  now  come  to  deal  with  the  rules  of  con- 
struction which  govern  the  interpretation  of  the  contract  as  it  is  proven 
to  have  been  made  between  the  parties. 


SAME— GENERAL   RULES. 

218.  The  three  general  rules  of  constniction  are  that: 

I  (a)    'Words  are  to  be  understood  in  their  plain  and  literal  meaning, 
but— 
EXCEPTIONS— (1)    Evidence  of  usage  may  vary  the  usual  mean- 
ing of  Avords. 
(2)    Technical  words  are  to  be  given  their  technical  meaning. 
(.3)    The  rule  is  subject  to  the  following  rules  as  to  giving  efEect 
to  the  intention  of  the  parties. 
I  Cb)    An  agreement  should  receive  that  construction  ^rhich  ■will  best 

effectuate  the  intention  of  the  parties. 
flic)    The   intention   of  the   parties  is  to   be   collected  from  the   whole 
agreement. 

219.  Subsidiary  to  these  rules  are  the  follow^ing,  tending  to  the  same 

end — that  is,  the  effecting  of  the  intention  of  the  parties: 

(a)  Obvious  mistakes  of  \irriting  or  grammar,  including  punctuation, 

w^ill  be  corrected. 

(b)  The  meaning  of  general  w^ords  xirill  be  restricted  by  more  specific 

and  particular  descriptions  of  the  subject-matter  to  w^hich  they 
apply. 

(c)  A  contract  susceptible  of  t^vo  meanings  will  be  given  the  mean- 

ing w^hich  will  render  it  valid. 

(d)  A  contract  Tvill,  if  possible,  be  construed  so  as  to  render  it  rea- 

sonable   rather   than   unreasonable. 

(e)  Words    will    generally    be    construed    most    strongly    against    the 

pai^y  Tvho  used  them. 

(f)  In  case   of  doubt,   Aveight  w^ill  be   given  the   construction  placed 

upon  the  contract   by  the  parties. 

(g)  Where  there  is  a  conflict  bet^eeen  printed  and  w^ritten  -words,  the 

latter  xirill  control. 

(i)  The  first  general  rule  is  that  words  are  to  be  understood  in  their 
plain  and  literal  meaning;  and  this  rule  is  followed,  though  the  con- 
sequences may  not  have  been  in  the  contemplation  of  the  parties.'^ 

C2  Hawes  v.  Smith,  12  Me.  429;  Bullock  v.  Lumber  Co.  (Cal.)  31  Pac.  367; 
Mansfield  &  S.  City  U.  Co.  v.  Veeder.  17  Ohio,  385;  Hall  v.  Bank,  53  Md. 
120;  Taylor  v.  Turley,  33  Md.  500;  Pillsbury  v.  Ix)cke,  33  N.  H.  90,  66  Am. 
Dec.  711;  Holn)os  v.  Hall,  8  Mich.  66,  77  Am.  Dec.  444;  Stettauer  v.  Hamlin, 
97  111.  312;  Brudshaw  v.  Bradbury,  64  Mo.  334;  Willmering  v.  McGaughey, 
30  Iowa.  205,  6  Am.  Rep.  073;  Smith  v.  Bank,  171  Mass.  178,  50  N.  E.  545; 
Fitzgerald  v.  Bank,  114  Fed.  474,  52  C.  C.  A.  270.     While  paities  to  a  contract 


§§  218-219)  RULES   OF   COXSTRUCTION.  403 

The  rule,  however,  is  subject  to  the  qualification  that  a  particular 
custom  or  usage,  which,  as  we  have  seen,  may  Ijc  proven,  may  vaiy 
the  usual  meaning-  of  words ;  °^  and  that  technical  words  are  to  be 
given  their  technical  meaning."'  It  is  also  subject  to  the  rules,  which 
we  will  now  explain,  as  to  giving  effect  to  the  intention  of  the  parties. 
(2, 3)  The  second  and  third  rules  may  be  mentioned  together, 
namely,  that  an  agreement  ought  to  receive  that  construction  which  will 
best  effectuate  the  intention  of  the  parties ;  and  this  intention  must 
be  collected,  not  from  detached  parts  of  the  agreement,  but  from  the 
whole  agreement.®'^  "Greater  regard  is  to  be  had  to  the  clear  intent 
of  the  parties  than  to  any  particular  words  which  they  may  have  used 
in  the  expression  of  their  intent."  ^^     Where  the  intention  clearly  ap- 

are  entitled  to  its  literal  performance,  when  practicable,  that  does  not  mean 
that  courts  and  juries  shall  give  to  the  ternis  of  a  couti-act,  however  clear 
and  unmistakable  the  ordinary  significance  of  the  words  employed,  a  meaning 
which,  when  applied  to  the  subject-matter  of  the  contract,  will  render  per- 
formance impossible.  Columbus  Const.  Co.  v.  Crane  Co.,  98  Fed.  946,  40  C.  C. 
A.  35. 

C3  Ante,  p.  396. 

64  Ante,  p.  396.  Findley's  Ex'rs  v.  Findley,  11  Grat.  (Va.)  434;  Ellmaker 
V.  Ellmaker,  4  Watts  (Pa.)  89;  Maiyland  Coal  Co.  v.  Railroad  Co.,  41  Md. 
343;  Eaton  v.  Smith,  20  Pick.  (Mass.)  150;  McAvoy  v.  Long,  13  111.  147; 
Kindskoff  v.  Barrett,  14  Iowa,  101. 

6  5  Mallan  v.  May,  13  Mees.  &  W.  511,  517;  Jackson  v.  Stackhouse.  1  Cow\ 
(N.  Y.)  122,  13  Am.  Dec.  514 ;  Gray  v.  Clark,  11  Vt.  583 ;  Hey  wood  v.  Perrin,  10 
Pick.  (Mass.)  228,  20  Am.  Dec.  518;  Field  v.  Leiter,  118  lU.  17,  6  N.  E.  877; 
Lindley  v.  Groff,  37  Minn.  338,  34  N.  W.  26;  Walsh  v.  Trevanion,  15  Q.  B.  733* 
Bell  V.  Bnien,  1  How.  169,  11  L.  Ed.  89;  Armstrong  v.  Granite  Co.,  147  N.  Y. 
495,  42  N.  E.  ISO,  49  Am.  St.  Rep.  683;  German  Fire  Ins.  Co.  v.  Roost,  55  Ohio 
St  5S1,  45  N.  E.  1097,  36  L.  R.  A.  236,  60  Am.  St.  Rep.  711;  Sattler  v.  Hallock, 
160  N.  Y.  291,  54  N.  B.  667,  46  L.  R.  A.  679,  73  Am.  St.  Rop.  686.  Where  sev- 
eral instruments  are  made  as  part  of  one  transaction,  they  will  be  read  together, 
and  each  will  be  construed  with  reference  to  the  other;  and  the.different  parts 
of  one  instrument  will  be  read  together.  Wood  v.  College,  114  Ind.  320,  16 
N.  E.  619;  Morss  v.  SalisbmT,  48  N.  Y.  636;  Thomson  v.  Beal  (C.  C.)  48  Fed, 
614 ;  Lindley  v.  Groff,  37  Minn.  338,  34  N.  W.  26 ;  Pensacola  Gas  Co.  v.  Lotze, 
23  Fla.  368,  2  South.  609;  Hageity  v.  White,  69  Wis.  317,  34  N.  W.  92;  Sutton 
V.  Beckwith,  68  Mich.  303,  36  N.  W.  79,  13  Am.  St.  Rep.  344;  Bailey  v.  Rail- 
road Co.,  17  Wall.  96,  21  L.  Ed.  611;  Joy  v.  City  of  St.  Louis,  138  U.  S.  1, 
11  Sup.  Ct  243,  34  L.  Ed.  843;  HUNT  v.  LIVERMORE,  5  Pick.  (Mass.) 
395;  Pierce  v.  Tidwell,  81  Ala.  299,  2  South.  15;  Freer  v.  Lake,  115  111.  662, 
4  N.  E.  512;  Palmer  v.  Palmer,  150  N.  Y.  139,  44  N.  E.  i)m,  55  Am.  St.  Rep. 
653;  American  Gas  &  Oil  Min.  Co.  v.  Wood,  90  Me.  516,  38  AU.  548,  43  L. 
R.  A.  449. 

66  FORD  v.  BEACH,  11  Q.  B.  852,  866;  Chesapeake  &  O.  Canal  Co.  v. 
Hill,  15  Wall.  94,  9  L.  Ed.  222;  Hoffman  v.  Insurance  Co.,  32  N.  Y.  405,  88 
Am.  Dec.  337;  Walker  v.  Douglas,  70  111.  445;  Collins  v.  Lavelle,  44  Vt. 
230;  First  Nat  Bank  v.  Gerke,  68  INId.  449,  13  Atl.  358,  6  Am.  St.  Rep.  453; 
Hunter's  Adm'rs  v.  Miller's  Ex'rs,  6  B.  Mon.  (Ky.)  612;  Gage  v.  Tirrell, 
9  Allen  (Mass.)  299;  Ullmann  v.  Railway  Co.,  112  Wis.  150,  88  N.  W.  41, 
88  Am.  St  Rep.  949.    11  it  clearly  appears  that  a  word  was  used  inadvertently, 


404  INTERPRETATION  OF  CONTRACT.  (Ch.  10 

pears  from  the  words  used,  there  is  no  need  to  go  further,  for  in  such 
a  case  the  words  must  govern ;  or,  as  it  is  sometimes  said,  where  there 
is  no  doubt,  there  is  no  room  for  construction.®'^  But,  if  the  meaning  is 
not  clear,  the  court  will  consider  the  circumstances  under  which  the  con- 
tract was  made,  the  subject-matter,  the  relation  of  the  parties,  and  the 
object  of  the  agreement,  in  order  to  ascertain  their  intention,  and  for 
!  this  purpose,  as  we  have  seen,  parol  evidence  is  admissible."^ 

These  rules  seem  to  be  in  conflict  with  the  rule  first  stated.  Taking 
them  together  they  come  substantially  to  this :  that  men  will  be  taken 
to  have  meant  precisely  what  they  have  said,  unless,  from  the  whole 
tenor  of  the  instrument,  a  definite  meaning  can  be  collected  which 
gives  a  broader  interpretation  to  specific  words  than  their  literal  mean- 
ing would  bear.  The  courts  will  not  make  an  agreement  for  the  par- 
ties, but  will  ascertain  what  their  agreement  was,  if,  not  by  its  general 
purport,  then  by  the  literal  meaning  of  its  words. 

Suhsidia/ry  Rules. 

(i)  Courts  will  correct  obvious  mistakes  in  writing  and  grammar.^^ 
This  rule  includes  another,  namely,  that  the  punctuation  of  a  document, 

or  is  inconsistent  with  tlie  real  intention,  it  will  be  rejected.  Wells  t. 
Tregiisau,  2  Salk.  463;  Dollman  v.  King,  4  Bing.  (N.  C.)  105;  Buck  v.  Burk, 
18  N.  Y.  337;  Stockton  v.  Turner,  7  J.  J.  Marsh.  (Ky.)  192;  Hibbard  v. 
McKindley,  28  III.  240;   Iredell  v.  Barbee,  31  N.  C.  250. 

6  7  Dwight  V.  Insurance  Co.,  103  N.  Y.  341,  8  N.  E.  G54,  57  Am.  Rep.  729; 
Canterberry  v.  Miller,  76  111.  355;  Noyes  v.  Nichols,  28  Vt.  159;  Williamson 
V.  McClure,  37  Pa.  402;  Araistrong  v.  Granite  Co.,  47  N.  Y.  495,  42  N.  B. 
186,  49  Am.  St.  Rep.  G83;  Clark  v.  MalloiT,  185  111.  227,  56  N.  E.  1099;  Abra- 
ham V.  Railroad,  37  Or.  495,  60  Pac.  899,  82  Am.  St.  Rep.  779. 

6  8  Roberts  v.  Bonapai-te,  73  Md.  191,  20  Atl.  918.  10  Ij.  R.  A.  689,  and  author- 
ities there  cited.  And  see  Nash  v.  Towne,  5  Wall.  689,  18  L.  Ed.  527;  Caper- 
ton's  Adm'rs  v.  Caperton,  36  W.  Va.  479,  15  S.  E.  257;  Penfold  v.  Insurance 
Co.,  85  N.  Y.  317,  39  Am.  Rep.  660;  Wilson  v.  Roots,  119  111.  379,  10  N.  E. 
204;  Kuecken  v.  Voltz,  110  111.  264;  Lacy  v.  Green,  84  Pa.  514;  Excelsior 
Needle  Co.  v.  Smith,  61  Conn.  56,  23  Atl.  693;  Mobile  &  M.  R.  Co.  v.  Jurey. 
Ill  U.  S.  584,  4  Sup.  Ct.  566,  28  L.  Ed.  527;  Gillett  v.  Bank,  160  N.  Y.  549, 
55  N.  E.  292;  Hull  Coal  &  Coke  Co.  v.  Coke  Co.,  113  Fed.  256,  51  C.  C.  A.  213. 
Thus,  where  a  policy  of  marine  insurance  excepted  the  time  "while  the  vessel 
is  at  Baker's  Island  loading,"  and  the  vessel  was  lost  while  there,  but  before 
it  had  begun  to  load,  it  was  held,  after  evidence  of  the  dangerous  character 
of  tbe  place,  that  the  intention  of  the  parties  was  to  except  the  time  while 
the  vessel  was  tliere  for  the  purpose  of  loading,  and  not  merely  while  it 
was  actually  loading.     Reed  v.  Insurance  Co.,  95  U.  S.  23,  24  L.  Ed.  348. 

«»  Wilson  V.  Wilson,  5  H.  L.  Cas.  40,  66;  Watson  v.  Blaine,  12  Serg.  & 
R.  (Pa.)  131,  14  Am.  Doc.  609;  Monmouth  Park  Ass'n  v.  Iron  Works,  55  N. 
J.  Law,  132,  26  Atl.  140,  19  L.  R.  A.  456,  39  Am.  St.  Rep.  626;  Atwood  v. 
Cobb,  16  Pick.  (Mass.)  227,  26  Am.  Dec.  657;  Harinan  v.  Howe,  27  Grat.  (Va.) 
676;  Caldwell  v.  Layton,  44  Mo.  220;  Knisely  v.  Shenberger,  7  Watts  (Pa.) 
193;  Fowler  v.  Woodward,  26  Minn.  347.  4  N.  W.  231;  Cowles  Electric 
Smelting  &  Aluminum  Co.  v.  Lowrey,  79  Fed.  331,  24  C.  Q  A.  616;  City  of 
Garden  City  v.  Heller,  61  Kan.  767,  60  Pac.  1060. 


t 


§§  218-219)  RULES   OF  CONSTRUCTION.  iOu 

though  it  may  aid  in  determining  the  meaning,  will  not  control  or 
change  a  meaning  which  is  plain  from  a  consideration  of  the  whole 
document  and  the  circumstances. '''' 

(2)  The  court  will  restrict  the  meaning  of  general  words  by  more 
specific  and  particular  descriptions  of  the  subject-matter  to  which  they 
are  to  apply  J  ^ 

(3)  \A^hcre  a  particular  word,  or  the  contract  as  a  whole,  is  suscep- 
tible of  two  meanings,  one  of  which  will  render  the  contract  valid,  and 
the  other  of  which  will  render  it  invalid,  the  former  will  be  adopted 
so  as  to  uphold  the  contract.  Thus,  where  a  document  was  expressed 
to  be  given  "in  consideration  of  your  being  in  advance"  to  a  person, 
and  it  was  argued  that  this  showed  a  past  consideration  which  would 
not  support  the  promise,  the  court  held  that  the  words  "being  in  ad- 
vance" might  mean  a  prospective  advance,  and  be  equivalent  to  "in  con- 
sideration of  your  becoming  in  advance,"  or  "on  condition  of  your  be- 
ing in  advance."  ^^  So,  also,  where  a  contract  is  susceptible  of  two 
constructions,  one  of  which  will  render  it  unlawful  as  being  in  viola- 
tion of  law  or  contrary  to  public  policy,  that  construction  which  will 
render  it  lawful  will  be  adopted. '^^ 

(4)  If  possible  without  going  contrary  to  the  manifest  intention  of 
the  parties,  a  contract  will  be  so  construed  as  to  render  it  reasonable 
rather  than  unreasonable.'^* 


7  0  White  V.  Smith,  33  Pa.  186,  75  Am.  Dec.  589;  Ewing  v.  Burnet,  11 
Pet.  41,  9  L.  Ed.  G24;  English's  Ex'r  v.  McNair's  Adm'rs,  34  Ala.  40;  Osbom 
V.  Farwell.  S7  111.  89,  29  Am.  Eep.  47;  Holmes  v.  Insurance  Co.,  98  Fed. 
240,  39  C.  C.  A.  45,  47  L.  R.  A.  308.  See  Joy  v.  City  of  St  Louis,  138  U.  S. 
1,    11   Sup.   Ct.    243,    251,   34   L.    Ed.    843. 

71  Phillips  V.  Barber,  5  Barn.  &  Aid.  101;  Cullen  v.  Butler,  5  Maule  &.  S. 
4G1;  Stettauer  v.  Hamlin,  97  111.  312;  Dawes  v.  Prentice,  16  Pick.  (Mass.) 
435;  Emery  v.  Fowler,  38  Me.  99;  Vaughan  v.  Porter,  16  Vt.  2GG;  Bock  v. 
Perkins,  139  U.  S.  628,  11  Sup.  Ct.  677,  35  L.  Ed.  314;  Richmond  Ice  Co.  v. 
Ice  Co.,  99  Va.  239,  37  S.  E.  851. 

7  2  HAIGH  V.  BROOKS,  10  Adol.  &  E.  326.  And  see  Atwood  v.  Cobb,  Ki 
Pick.  (Mass.)  227,  26  Am.  Dec.  (>57;  Anderson  v.  Baughman,  7  Mich.  69, 
74  Am.  Dec.  699;  ThraU  v.  Newell,  19  Vt.  202,  47  Am.  Dec.  682;  Field  v. 
Leiter,  118  111.  17,  6  N.  E.  877;  Gano  v.  Aldridge,  27  Ind,  294;  Rellly  v. 
Chouquette,  18  Mo.  220;  Hunter  v.  Anthony,  53  N.  C.  385,  80  Am.  Dec.  333: 
Saunders  v.  Clark,  29  Cal.  299;   Wells  v.  Atkinson,  24  Minm  161. 

73  Archibald  v.  Thomas,  3  Cow.  (N.  Y.)  2t^;  Ormes  v.  Dauchy,  82  N.  Y. 
443,  37  Am.  Rep.  583;  Hobbs  v.  McLean,  117  U.  S.  567,  6  Sup.  Ct  870,  29 
L.  Ed.  940;  United  Stiites  v.  Railroad  Co.,  118  U.  S.  235,  6  Sup.  Ct  1038, 
30  L.  Ed.  173;  Lorillard  v.  Clyde,  86  N.  Y.  SM;  Horton  v.  Rohlff  (Neb.)  95 
N.  W.  36. 

74  Atwood  V.  Emery,  1  C.  B.  (N.  S.)  110;  Russell  v.  AUerton,  108  N.  Y. 
2SS,  15  N.  E.  391;  Wilson  v.  Mario w,  66  111.  385;  Town  of  Royalton  v.  Tura- 
pike  Co.,  14  Vt  311;  Bickford  v.  Cooper,  41  Pa.  142;  Gillft  v.  Bank,  160 
N.  Y.  549,  55  N.  E.  292;  Pressed  Steel  Car  Co.  y.  Railway  Co.,  121  Fed.  609, 
57  C.  C.  A.  (J35. 


406  INTERPRETATION  OF  CONTRACT.  (Ch.  10 

(5)  The  courts  will  construe  words  most  strongly  against  the  party 
who  used  them.  Words  in  an  offer,  for  instance,  will  be  construed 
most  strongly  against  the  proposer,  and  words  in  an  acceptance  most 
strongly  against  the  acceptor ;  words  in  a  promissory  note  most  strong- 
ly against  the  maker;  words  in  a  policy  of  insurance  most  strongly 
against  the  insurer;  and  words  in  a  conveyance,  particularly  of  ex- 
ception or  reservation,  most  strongly  against  the  grantor.'^ ^  The  prin- 
ciple on  which  this  rule  is  based  has  been  said  to  be  that  a  man  is  j;e- 
sponsible  for  ambiguities  in  his  own  expressions  and  has  no  right  to 
induce  another  to  contract  with  him  on  the  supposition  that  his  words 
mean  one  thing,  while  he  hopes  the  court  will  adopt  a  construction  by 
which  they  would  mean  another  thing  more  to  his  advantage.'^" 

The  liability  of  a  guarantor  or  surety  is  said  to  be  stricti  juris,  and 
is  to  be  determined  by  the  strict  interpretation  of  the  words  used,  and 
cannot  be  extended  by  implication.'^^     Such  contracts  are  nevertheless 

7  8  Barney  v.  Newcomb,  9  Gush.  46;  Noonan  v.  Bradley,  9  Wall.  394,  19 
L.  Ed.  757;  Jackson  v.  Gardner,  8  Johns.  (N.  Y.)  308;  Duryea  v.  Mayor, 
etc.,  62  N.  Y.  592,  Varnuin  v.  Thruston,  17  Md.  471;  Richardson  v.  People, 
85  111.  495;  Shai-p  v.  Thompson,  100  lU.  447,  39  Am.  Rep.  61;  Waterman  v. 
Andrews,  14  R.  I.  589;  Hill  v.  Manufacturing  Co.,  79  Ga.  105,  3  S.  E.  445: 
Phoenix  Ins.  Co.  v.  Slaughter,  12  Wall.  404,  20  L.  Ed.  444;  American  Surety 
Co.  V.  Pauly,  170  U.  S.  160,  18  Sup.  Ct.  552,  42  L.  Ed.  987;  Snyder  v.  Insur- 
ance Co.,  59  N.  J.  Law,  544,  37  Atl.  1022,  59  Am.  St.  Rep.  625;  Wilson  v. 
Cooper  (C.  C.)  95  Fed.  625;  Bowser  v.  Patrick  (Ky.)  65  S.  W.  824.  The  rule 
does  not  apply  where  it  would  cause  a  penalty  or  forfeiture.  A  condition 
in  a  bond,  for  instance,  is  construed  most  strongly  against  the  obligee.  Butler 
V.  Wigge,  1  Saund.  65;  Hoffman  v.  Insurance  Co.,  32  N.  Y.  405,  88  Am.  Dec. 
337;  Bennehan  v.  W^ebb,  28  N.  C.  57;  Chicago,  B.  &  Q.  R.  Co.  v.  City  of 
Aurora,  99  111.  205.  But  a  grant  from  the  government  is  construed  most 
strongly  against  the  grantee.  Canal  Com'rs  v.  People,  5  W^end.  (N.  Y.)  423, 
459;  2  Bl.  Comm.  347;  Raleigh  &  G.  R.  Co.  v.  Reid,  64  N.  C.  155;  Mayor, 
etc.,  of  Allegheny  v.  Railroad  Co.,  26  Pa.  355;  Hartford  Bridge  Co.  v.  Ferry 
Co.,  29  Conn.  210;  Northwestern  Fertilizing  Co.  v.  Village  of  Hyde  Park, 
70  111.  634;  Mayor,  etc.,  of  City  of  New  York  v.  P^ailroad  Co.,  97  N.  Y.  275, 
281.  It  is  said,  however,  that  this  "rule  of  construction  has  been  applied  to 
gratuitous  grants  made  by  the  sovereign  of  property,  franchises,  and  privi- 
leges, upon  the  solicitation  of  the  grantee,"  but  that  it  does  not  apply,  "cer- 
tainly not  in  its  full  extent,  to  grants  made  for  the  benefit  of  the  sovereign 
upon  adequate  valuable  consideration  paid  to  the  sovereign  for  the  thing 
granted."  Langdon  v.  Mayor,  etc.,  93  N.  Y.  132.  And  see  Proprietors  of 
Charles  River  Bridge  v.  Proprietors  of  Warren  Bridge,  7  Pick.  (Mass.)  344, 
485;   Garrison  v.  U.  S.,  7  Wall.  688,  19  L.  Ed.  277. 

70  Fowkes  V.  Association,  3  B.  &  S.  929;  Gillet  v.  Bank,  160  N.  Y.  594,  55 
N.  E.  292.  A  party  must  be  deemed  to  have  assented  to  a  contract  in  the 
sense  in  which  he  knew  the  other  intended  it  to  signify,  if  the  language  is 
capable  of  that  meaning.  Cowles  Electric  Smelting  &  Aluminum  Co.  v. 
Ivowrey,  79  Fed.  331,  24  C.  C.  A.  616.  See,  also,  Leete  v.  Mining  Co.  (C.  C.)  88 
Fed.  y."j7;  Wood  v.  Allen,  111  Iowa,  97,  82  N.  W^  451;  People's  Bldg.  Ass'n 
V.  Klauber  (Iowa)  95  N.  W.   1072. 

77  Douglass  V.  Reynolds,  7  Pet  125,  8  L.  Ed.  626;    People  v.  Backus,  117 


§§  218-219)  RULES  OF  CONSTllLXTION.  407 

to  be  interpreted  reasonably  and  according  to  the  intention  of  the  par- 
ties.'^ ^  And  if  the  contract  is  fairly  susceptible  of  two  interpretations, 
and  the  other  party  has  acted  upon  the  interpretation  most  favorable 
to  his  rights,  it  seems  that  such  interpretation  will  prevail.''® 

(6)  Where  the  meaning  of  the  terms  used  is  clear,  the  fact  that  the 
parties  have  themselves,  by  their  subsequent  conduct  or  otherwise, 
placed  an  erroneous  construction  upon  them,  will  not  prevent  the 
court  from  giving  the  true  construction ;  ^^  but,  where  the  meaning  is 
doubtful,  such  construction  by  the  parties  is  of  great  weight  in  deter- 
mining the  true  meaning,  and  in  some  cases  may  be  controlling.^^ 

(7)  Where,  as  in  the  use  of  printed  forms,  a  contract  is  partly  printed 
and  partly  written,  and  there  is  a  conflict  between  the  printing  and  the 
writing,  the  latter  will  control.^ ^ 

Terms  Implied — Unexpressed  Intention. 

Certain  terms,  though  unexpressed,  are  imported  into  the__contract 
bj_law  without  proof  that  they  were  intended  by  the  parties.  Unless 
a  contrary  intention  was   expressed,  the  law   conclusively  presumes 

N.  Y.  196,  22  N.  E.  759;  Marklaud  IMin.  &  Mfg.  Co.  v.  Kimmel,  87  Ind.  5U0; 
Weir  Plow  Co.  v.  Walmsley,  110  Ind.  242,  U  N.  E.  232;  Hopewell  v.  Mc- 
Grew,  50  Neb,  789,  70  N.  W.  397;  Sherman  v.  Mulloy,  174  Mass.  41,  54  N. 
E.  345,  75  Am.   St.  Rep.  286. 

T8  People  V.  Lee,  104  N.  Y.  441,  10  N.  Ew  884;  Powers  v.  Clarke,  127  N. 
Y.  417,  28  N.  E.  402;  Hooper  v.  Hooper,  81  Md.  155,  31  Atl.  508,  48  Am.  St. 
Rep.  496;    Northern  Light  Lodge  v,  Kennedy,  7  N.  D.  146,  73  N.  W.  524. 

■7  9  LawTence  v.  McCalmont,  2  How.  426,  11  L.  Ed.  326;  Smith  v.  Molleson, 
148  N.  Y.  241,  42  N.  E.  669;  London  &  S.  F.  Bank  v.  Parrott,  125  Cal.  472, 
58  Pac.  164,  73  Am.  St.  Rep.  64:. 

80  Puiilroad  Co.  v.  Trimble,  10  Wall,  367,  19  L.  Ed.  948;  Holston  Salt  & 
Plaster  Co.  v.  Campbell,  89  Va.  396,  16  S.  E.  274;  Hershey  v.  Luce,  56  Ark. 
320,  19  S.  ^Y.  963,  20  S.  W.  6;  St.  Paul  &  D.  R.  Co.  v.  Blackmar,  44  Minn. 
514,  47  N.  W.  172;  Citizens'  Fire  Ins.,  Security  &  Land  Co.  v.  Doll,  35  Md. 
89,  6  Am.  Rep.  360;  Russell  v.  Young,  94  Fed.  45,  36  C.  C.  A.  71;  Menage 
V.  Rosenthal,  175  Mass.  358,  56  N.  E.  579. 

81  French  v.  Pearce,  8  Comi.  439,  21  Am.  Dec.  680;  Topliff  v.  TopliEf,  122 
U.  S.  121,  7  Sup.  Ct.  1057,  30  L.  Ed.  1110;  Mitchell  v.  Wedderbura,  68  Md. 
139,  11  Atl.  760;  Hosmcr  v.  McDonald,  SO  Wis.  54,  49  N.  W.  112;  Leavltt 
V.  Investment  Co.,  4  C.  C,  A.  425,  54  Fed.  439;  People's  Natural  Gas  Co. 
V.  Wire  Co.,  155  Pa.  22,  25  Atl.  749;  Hill  v.  City  of  Duluth,  57  Minn.  231, 
58  N.  W.  992;  People  v.  Murphy,  119  111.  159,  6  N.  E.  488;  District  of  Co- 
lumbia V.  Gallaher,  124  U.  S.  505,  8  Sup.  Ct.  585,  31  L.  Ed.  526:  City  of 
Cincinnati  v.  Coke  Co..  53  Ohio  St.  278,  41  N.  E.  239 ;  Childers  v.  Rank.  147  Ind. 
430,  46  N.  E.  825;  Hale  v.  Sheehan,  52  Neb.  184,  71  N.  W.  1019;  Long-Bell 
Lumber  Co.  v.  Stump,  86  Fed.  574,  30  C.  C  A.  260. 

82  Clark  V.  Woodruff,  83  N.  Y.  518;  Chadsey  v.  Guion,  97  N.  Y.  333; 
Thornton  v.  Railroad  Co.,  84  Ala.  109,  4  South.  197,  5  Am.  St.  Rep.  337; 
Hernandez  v.  Insurance  Co.,  6  Blatchf.  317,  Fed.  Cas.  No.  6,415;  Murray  v. 
Pillsbury,  59  Minn.  85,  60  N.  W.  844;  Breyman  v.  Railroad  Co.  (C.  C.)  85 
Fed.  579;  City  of  Chicago  v.  Weir,  165  111.  582.  46  N.  E.  725;  Commonwealtb 
Title  Ins.  &  Trust  Co.  y.  Ellis,  192  Pa.  321,  43  AU.  1034,  73  Am.  St.  Rep.  816; 


408 


INTERPRETATION   OF   CONTRACT. 


(Ch.  10 


that  they  intended  to  make  them  a  part  of  their  contract.     "The  unex- 
pressed obligations  in  these  instances,  which  are  imphed  by  law,  are 
those  which  are  inherent  in  the  transaction  according  to  its  true  nature, 
and  may  be   regarded   as   the   unexpressed   intention   of   the   parties. 
*     *     *     It  is  generally  said  that  contracts  will  be  construed  according 
to  the  intention  of  the  parties.     But  this  means,  not  only  what  they 
did  actually  intend,  but  also  what,  according  to  the  essential  nature  of 
-     the  particular  transaction,  the  law  considers  that  they  should  have  in- 
^     tended.     No  intention  can,  however,  be  read  into  a  contract  unless  it 
^T.     is  thus  a  necessary  legal  implication.     *     *     *     When  a   particular 
^  kind  of  contract  is  made,  it  is  presumed  that  the  parties  intended  to 

\     embody  all  the  legal  consequences  of  the  act,  whether  they  knew  of 
^^^^^^jj,     them  or  not,  unlc"-;  it  can  be  seen  from  the  language  they  used  that 
•    *i3"      tjigy  intended  to  e:..lude  some  of  them."  ^^ 
3;  This  principle  is  illustrated  by  an  ordinary  contract  of  sale.     In  all 

'f*  such  contracts,  in  the  absence  of  expression  to  the  contrary,  it  is  con- 

clusively presumed  that  the  seller  intended  to  stipulate  that  he  had 
the  title  to  the  property  and  the  right  to  sell  it.     These  implied  stipula- 
^       „       tions  are  called  "implied  warranties."     Though  unexpressed,  they  are 
5     ^i      imported  into  the  contract  by  implication  of  law. 


.r 


^ 


4 


J' 


SAME— RULES  AS  TO  TIME. 

220.  At  common  laxtr,  time  is  alxirays  of  the  essence  of  a  contract;  Tint 
in  equity  it  is  otiierivise,  unless  it  iiras  intended  by  the  par- 
ties to  make  time  of  the  essence,  and  their  intention  is  ex- 
pressed or  to  be  implied.  In  the  absence  of  such  intention,  the 
rule  is  that  a  reasonable  time  tvas  meant.  In  some  jiirisdic- 
tions,  by  statute,  the  rule  at  law  is  the  same  as  in  equity. 

When  the  contract  fixes  no  time  for  performance,  the  contract  is 
to  be  construed  as  allowing  a  reasonable  time.**  What  is  a  reasonable 
time  is  a  question  to  be  determined  in  view  of  all  the  circumstances 
which  may  have  been  supposed  reasonably  to  have  been  in  contempla- 
tion of  the  parties.*"* 


Sprague  Electric  Co.  v.  Board  of  Com'rs,  83  Minn.  2G2,  86  N.  W.  332  (writing 
and  typewriting).  See,  also,  Sturm  v.  Boker,  loO  U.  S.  312,  14  Sup.  Ct.  99, 
37  L.  Ed.   1093. 

ssBrantly,  Cont.  178,  179;  Genet  v.  Canal  Co.,  136  N.  Y.  593,  32  N.  E. 
1078,  19  L.  R.  A.  127;  Rioux  v.  Brick  Co.,  72  Vt.  148,  47  Atl.  400. 

S4  Ellis  V.  Thompson,  3  Mees.  &  W.  445;  Pope  v.  Mauufactiiring  Co.,  107 
N.  Y.  Gl,  13  N.  E.  592;  Boyd  v.  Gunnison,  14  W.  Va.  11;  Griffin  v.  Ogletree, 
114  Ala.  343,  21  South.  488;  Rogers  v.  Burr,  97  Ga.  10,  25  S.  E.  339;  Eppens, 
Smith  &  Wiemann  Co.  v.  Littlejohn,  164  N.  Y.  187,  58  N.  E.  19,  52  L.  R.  A. 

s5  Ellis  V.  Thompson,  3  Mees.  &  W.  445;  Finney  v.  Railroad  Co.,  19  Minn. 
251  (Gil.  211);    Staiige  y.  Wilson,  17  Mich.  342;    Coon  v.  Spaukling,  47  Mich. 


§  220)  RULES    OF    CONSTItUCTION.  401) 

Where  the  contract  fixes  a  time  for  performance,  the  time,  at  com- 
mon law,  is  always  of  the  essence  of  the  contract;  that  is  to  say,  if  a 
person  promises  another  to  do  a  certain  tiling  by  a  certain  day,  in  con- 
sideration that  the  latter  will  do  something  for  him,  the  thing  must 
t>e  done  by  the  date  named,  or  the  latter  is  discharged  from  his  promise. 
Courts  of  equity,  however,  look  further  into  the  intention  of  the  par- 
ties, so  as  to  ascertain  whether,  in  fact,  the  performance  of  the  con- 
tract by  one  party  was  meant  to  depend  upon  the  other  party's  promise 
being  fulfilled  by  the  day  named  therefor,  or_whet^her  a  day  was  named 
merely  in  order  to  secure  performance  within  a  reasonable  time.  If 
the  latter  was  found  to  be  the  intention  of  the  parties,  equity  would 
not  refuse  to  enforce  the  contract  if  the  promise  required  to  be  so  per- 
formed was  perfonned  within  a  reasonable  time.^'  It  is  always  open 
to  the  parties,  however,  even  in  equity,  to  make  time  of  the  essence  of 
the  contract.^ ^  In  some  of  the  states,  even  where  time  is  expressly 
declared  to  be  of  the  essence  of  the  contract,  courts  of  equity  will  dis- 
regard the  stipulation  if  its  enforcement  would  be  unconscionable.** 

In  England,  and  in  some  of  our  states,  the  distinction  in  this  respect 

162,  10  N.  W.  183;    Stewart  v.  Marvel,  101  N.  Y.  357,  4  N.  E.  743;   McFaddeu 
V.  Henderson,  128  Ala.  221,  29  South.  640. 

8  8  Maltby  v.  Austin,  05  Wis.  527,  27  N.  W.  162;  Bellas  v.  Hays,  5  Serg. 
&  R.  (Pa.)  427,  9  Am.  Dec.  385:  Moote  v.  Scriven,  33  Mich.  500;  Andrews 
V.  Sullivan,  2  Gilnian  (111.)  327,  43  Am.  Dec.  53;  Garietson  v.  Vanloon,  3 
G.  Greene  (Iowa)  128,  54  Am.  Dec.  492;  Taylor  v.  Baldwin,  27  Ga.  438,  73 
Am.  Dec.  736;  THURSTON  v.  ARNOLD,  43  Iowa,  43;  Austin  v.  Wacks, 
30  Minn.  335,  15  N.  W.  409.     See  Anson,  Cont.   (8th  Ed.)  269. 

87  Eennon  v.  Napper,  2  Schrales  &  L.  682;  Barnard  v.  Lee,  97  Mass.  92; 
Carter  v.  Phillips,  144  Mass.  100,  10  N.  E.  500;  Kemp  v.  Humphreys,  13 
111.  573;  Potter  v.  Tuttle,  22  Conn.  512;  Cheney  v.  Libby,  134  U.  S.  (J8,  10 
Sup.  Ct.  498,  33  L.  Ed.  818;  Wells  v.  Smith,  7  Paige  (N.  Y.)  22.  31  Am.  Dec. 
274;  Grigg  v.  Landis,  21  N.  J.  Eq.  494;  Scott  v.  Fields,  7  Ohio,  90,  pt  2; 
Reed  v.  Breeden,  61  Pa.  460;  Grey  v.  Tubbs,  43  Cal.  359;  Kirlirj-  v.  Har- 
rison, 2  Ohio  St.  326,  59  Am.  Dec.  677;  Young  v.  Daniels,  2  Iowa,  126,  63 
Am.  Dec.  477;  Bullock  v.  Adams'  Ex'rs,  20  N.  J.  Eq.  367;  Jewett  v.  Black, 
60  Neb.  173,  82  N.  W.  375.  Even  where  time  is  expressly  dechirod  to  be 
of  the  essence,  it  may  be  waived  by  the  conduct  of  the  party  for  whose 
benefit  the  stipulation  is  made;  as  where  he  recognizes  the  contract  as  in  force 
after  the  time  for  performance  has  passed,  or  directs  changes  making  a 
longer  time  necessaiy.  Brown  v.  Safe-Deposit  Co.,  128  U.  S.  414,  9  Sup.  Ct. 
127,  32  L.  Ed.  468;  PHILLIPS  &  COIJBY  CONST.  CO.  v.  SEYMOUR,  91 
U.  S.  646,  23  L.  Ed.  341;  Amoskeag  Mfg.  Co.  v.  U.  S.,  17  Wall.  592,  21  L. 
Ed.  715;  Paddock  v.  Stout,  121  111.  571,  13  N.  E.  182;  Pinckney  v.  Damb- 
mnnn,  72  Md.  173,  19  Atl.  450.  If  the  party  prevents  performance  by  the 
other,  he  camiot  insist  on  the  stipulation.  Dannat  v.  Fuller,  120  N.  Y.  554. 
24  N.  E.  815;  King  Iron  Bridge  &  Mfg.  Co.  v.  City  of  St.  Louis  (C.  C.)  43 
Fed.  768,  10  L.  R.  A.  826;  liees  v.  Logsdon,  68  Md.  93,  11  Atl.  708;  Ward 
V.  Matthews,  73  Gal.  13,  14   Pac.  604;    post,  p.  404. 

88  Richmond  v.  Robinson,  12  Mich.  193;  Volz  v.  Grummett,  49  Mich.  453, 
13  N.  W.  814;  Austin  v.  Wacks,  30  Minn.  335,  15  N.  W.  409;  Quinn  v.  Roath, 
37  Conn.  16;    Ballard  v,  Cheney,  19  Nob.  58,  26  N.  W.  587. 


410  INTERPRETATION  OF  CONTRACT.  (Cll.  10 

between  the  rules  of  law  and  equity  has  been  swept  away  by  statutes 
declaring,  substantially,  that  stipulations  in  contracts  as  to  time  or  oth- 
erwise, which  would  not  theretofore  have  been  deemed  as  of  the  es- 
sence of  such  contracts  in  a  court  of  equity,  should  receive  in  all  courts 
the  same  construction  and  effect  as  they  would  have  received  in  equity. 
Where  time  is  not  made  of  the  essence  of  the  contract  by  express 
'stipulation,  it  may  nevertheless  be  held  to  have  been  intended  from  the 
nature  of  the  contract. ^^  In  mercantile  contracts,  such  as  contracts  for 
the  manufacture  and  sale  of  goods,  it  is  generally  held  that^ime.isof 
the  essence;  and,  where  a  term  of  the  contract  provides  for  the  time 
of  shipment  or  delivery,  shipment  or  delivery  at  the  time  fixed  will 
usually  be  regarded  as  a  condition  precedent,  on  the  failure  of  which 
the  other  party  may  repudiate  the  whole  contract.®"  In  contracts  for 
the  sale  of  land,  or  for  the  performance  of  services,  or  the  construction 
of  buildings,  and  the  like,  time  will  be  held  of  the  essence  if,  from  the 
nature  of  the  property  and  the  circumstances,  it  seems  that  the  parties 
must  have  so  intended,  but  generally,  in  such  contracts,  time  is  not  of 
the  essence.®^ 

89  NEW  YORK  LIFE  INS.  CO.  v.  STATHAM,  93  U.  S.  24,  23  L.  Ed.  789; 
COLEMAN  V.  APPLEGARTH.  G8  Md.  21,  11  Atl.  284,  6  Am.  St.  Rep.  417; 
Cabot  V.  Kent,  20  R.  I.  197,  37  Atl.  945;  Savannah  Ice  Delivery  Co.  v.  Transit 
Co.,  110  Ga.  142,  35  S.  E.  280;    Rioux  v.  Brick  Co.,  72  Vt.  148,  47  Atl.  406. 

9  0  Bowes  V.  Shand,  2  App.  Cas.  455;  Jones  v.  U.  S.,  96  U.  S.  24,  24  L.  Ed. 
644;  NORRINGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct  12,  29  L.  Ed. 
366;  Cleveland  Rolling-Mill  Co.  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882, 
30  L.  Ed.  920;  Cromwell  v.  Wilkinson,  18  Ind.  365;  Camden  Iron-Works 
V.  Fox  (C.  C.)  34  Fed.  200;  Scarlett  v.  Stein,  40  Md.  512;  Lefferts  v.  Weld, 
167  Mass.  531,  46  N.  E.  107;  Hull  Coal  &  Coke  Co.  v.  Coke  Co.,  113  Fed. 
256,  51  C.  C.  A.  213.  Cf.  Coyne  v.  Avery,  189  111.  378,  59  N.  E.  788.  But 
it  seems  that,  unless  a  contrary  intention  appears,  stipulations  as  to  the  time 
of  payment  are  not  usually  to  be  deemed  of  the  essence.  Martindale  v. 
Smith,  1  Q.  B.  389,  395;  MERSEY  STEELE  &  IRON  CO.  v.  NAYLOR,  9 
App.  Cas.  434,  444;  Monarch  Cycle  Mfg.  Co.  v.  Wheel  Co.,  105  Fed.  324, 
44  C.  C.  A.  523;  West  v.  Bechtel,  125  Mich.  144,  84  N.  W.  69,  51  L.  R.  A. 
791.     See  NORRINGTON  v.  WRIGHT,  supra,  per  Gray,  J. 

91  Brown  v.  Safe-Deposit  Co.,  128  U.  S.  403,  9  Sup.  Ct.  127.  32  L.  Ed.  468; 
Goldsmith  v.  Guild,  10  Allen  (Mass.)  239;  Green  v.  Covillaud,  10  Cal.  317, 
70  Am.  Dec.  725;  Waterman  v.  Banks.  144  U.  S.  394,  12  Sup.  Ct.  646,  36 
L.  Ed.  479;  Young  v.  Daniels,  2  Iowa,  126,  63  Am.  Dec.  477;  Derrett  v.  Bow- 
man, 61  Md."  520;  Beck  &  Fauli  Lithographing  Co.  v.  Elevator  Co.,  3  C.  C. 
A.  248,  52  Fed.  700;  Tayloe  v.  Sandiford,  7  Wheat.  13,  5  L.  Ed.  384;  Uambly 
V.  Railroad  Co.  (C.  G.)  21  Fed.  541. 


'  "§§  221-222)   ^^  ^^^EULES  ^OF  coxsTrXG-ffON.     '  r  C^  Ot^.  \iil 


SAME— RULES  AS   TO  PENAIiTIES  AND   UQUIDATED   DAMAGES. 

221.  If   the   parties   fix   upon  a  certain,   sum  to   be   paid   on   breach   of 

the  contract, 

(a)  It  may  be  recovered  if  it  was  really  fixed  upon  as  liquidated  dam- 

ages for  nonperformance.      This  is  subject  to  the  rules  of  con- 
struction stated  below. 

(b)  But,  if  it  ivas  intended  in  the  nature   of  a  penalty  in  excess   of 

any  loss  likely  to  be  sustained,  the  recovery  will  be  limited  to 
the  loss  actually  sustained. 

222.  In   determining  xp-hether   the    sum   named   is   a   penalty   or   liqui- 

dated damages,  these  rules  may  be  stated: 

(a)  The    courts  will  not  be   guided  by  the  name   given  to  it  by  the 

parties. 

(b)  If  the  matter  of  the  contract  is  of  certain  value,  a  sum  in  excess 

of  that  value    is   a  penalty. 

(c)  If  the  matter  is   of  uncertain  value,  the  sum  fixed  is  liquidated 

damages. 

(d)  If  a  debt  is  to  be  paid  by  installments,  it  is  no  penalty  to  make 

the  whole  debt  due  on  nonpayment  of  an  installment. 

(e)  If  some  terms  of  the  contract  are  of  certain  value,  and  some  are 

not,  and  the  penalty  is  applied  to  a  breach  of  any  one  of  them, 
it  is  not  recoverable  as  liquidated  damages. ^  2 

Where  the  parties  to  a  contract  affix  a  sum  certain  to  be  paid  on 
the  nonperformance  of  his  promise  by  one  or  each  of  them,  they  may 
have  intended  (i)  to  assess  the  damages  at  which  they  rated  the  non- 
performance of  the  promise,  or  (2)  to  secure  its  performance  by  impos- 
ing a  penalty  in  excess  of  the  actual  loss  likely  to  be  sustained.  If 
the  former  can,  according  to  the  rules  to  be  presently  mentioned,  rea- 
sonably be  construed  to  have  been  their  intention,  the  sum  named  is 
recoverable  as  "liquidated  damages,"  on  breach  of  the  promise.  If 
the  latter  was  their  actual  or  presumed  intention,  the  amount  recover- 
able is  limited  to  the  loss  actually  sustained.  Formerly,  this  rule  ex- 
isted only  in  equity,  but  for  a  long  time  it  has  been  also  applied  in 
the  courts  of  law.**^ 

Rides  of  Construction. 

In  construing  contracts  in  which  such  a  term  is  introduced,  the 
courts  will  not  be  guided  by  the  name  given  to  the  sum  to  be  paid.  If 
it  is  liquidated  damages,  they  will  enforce  it,  though  erroneously  called 
a  "penalty,"  and,  on  the  other  hand,  if  it  is  in  the  nature  of  a  penalty, 
they  will  not  allow  it  to  be  enforced,  although  designated  "liquidated 
damages."  ^* 

92  Anson,  Cont.   (4th  Ed.)  256. 

83  Watts  V.  Camors,  115  U.  S.  353,  6  Sup.  Ct.  91.  29  L.  Ed.  40G:  Tayloe 
V.  Sandiford,  7  Wheat  13,  5  L.  Ed.  3S4. 

»*  Ward  V.  Building  Co.,  125  N.  Y.  230,  26^  N.  E.  256;   Bagley  v.  Peddle, 


.,-V^     t'-^'>-^^    >,    !_/  ( 


,  f  *! 


412  INTERPRETATION  OF  CONTRACT.  (Cll.  10 

(i)  If  the  contract  is  for  a  matter  of  certain  value,  or  value  easily 
ascertainable,  and  a  sum  in  excess  of  that  value  is  fixed  to  be  paid  on 
breach  of  it,  the  sum  so  fixed  is  a  penalty,  and  not  liquidated  damages.®^ 

(2)  If  the  contract  is  for  a  matter  of  uncertain  value,  and  a  sum  is 
fixed  to  be  paid  on  breach  of  it,  and  is  not,  on  tlie  face  of  the  contract, 
so  greatly  in  excess  of  the  probable  damage  as  to  show  that  the  parties 
could  not  have  fixed  upon  it  otherwise  than  as  a  penalty,  the  sum  is 
recoverable  as  liquidated  damages.  There  is  "nothing  illegal  or  un- 
reasonable in  the  parties,  by  their  mutual  agreement,  settUng  the 
amount  of  damages,  uncertain  in  their  nature,  at  any  sum  upon  which 
they  may  agree."  ^^  If  the  stipulation  is  so  construed,  the  plaintiff  is 
limited  to  the  amount  named,  though  his  actual  damages  may  be 
greater.^^ 

Courts  lean  against  forfeiture,  and  towards  construing  stipulations 

16  N.  Y.  469,  69  Am.  Dec.  713;  Condon  v.  Kemper,  47  Kan.  126,  27  Pac. 
829,  13  L.  R.  A.  671 ;  Wallis  v."  Carpenter,  13  Allen  (Mass.)  19 ;  Cheddick's 
Ex'r  V.  Marsh,  21  N.  J.  Law,  463 ;  BIGNALL  v.  GOULD,  119  U.  S.  495,  7  Sup. 
Ct.  294,  30  L.  Ed.  491 ;  Sanford  v.  Bank,  94  Iowa,  680,  63  N.  W.  459 ;  J.  G. 
Wagner  Co.  v.  Cawker,  112  Wis.  532,  88  N.  W.  599. 

95  Clements  v.  Railroad  Co.,  132  Pa.  445,  19  Atl.  274;    Brennan  v.  Clark, 

29  Neb.  385,  45  N.  W.  472;  Willson  v.  City  of  Baltimore,  83  Md.  203,  34 
Atl.  774,  55  Am.  St.  Rep.  339. 

88  KEMBLE  V.  FARREN,  6  Bing.  147;  Poppers  v.  Meagher,  148  lU.  192, 
35  N.  B.  805;  Maxwell  v.  Allen,  78  Me.  32,  2  Atl.  386,  57  Am.  Rep.  783; 
Keeble  v.  Keeble,  85  Ala.  552,  5  South.  149;  Gushing  v.  Drew,  97  Mass.  445; 
Tennessee  Mfg.  Co.  v.  James,  91  Tenn.  154,  18  S.  W.  262,  15  L.  R,  A.  211, 

30  Am.  St.  Rep.  SU5;  Easier  v.  Beard,  39  Minn.  32,  38  N.  W.  755;  Lansing 
V.  Dodd,  45  N.  J.  Law,  525;  Trower  v.  Elder,  77  111.  452;  Morse  v.  Rathburn, 
42  Mo.  598,  97  Am.  Dec.  359;  Pennypacker  v.  Jones.  106  Pa.  237;  May  v. 
Crawford,  142  Mo.  390,  44  S.  W.  260;  City  of  New  Britain  v.  Telephone 
Co.,  74  Conn.  326,  50  Atl.  881;  Pressed  Steel  Car  Co.  v.  Railroad  Co.,  121 
Fed.  609,  57  C.  C.  A.  635.  Stipulation  in  building  contract  for  payment  by 
contractor  of  certain  sum  for  each  day  that  work  remains  uncompleted  after 
certain  day  construed  as  liquidated  damages.  Legge  v.  Harlock,  12  Q.  B. 
1015;  Fletch  v.  Dyche,  2  Term  R.  32;  Hall  v,  Crowley,  5  Allen  (Mass.)  304, 
81  Am.  Dec.  745;  Ward  v.  Building  Co.,  125  N.  Y.  230,  26  N.  E.  256;  Mon- 
mouth Park  Ass'n  v.  Iron  Works,  55  N.  J.  Law,  132,  26  Atl.  140,  19  L.  R. 
A.  456,  39  Am.  St.  Rep.  626;  Lincoln  v.  Granite  Co.,  56  Ark.  405,  19  S.  W. 
1056;  De  Graff  v.  Wickham,  89  Iowa,  720,  52  N.  W.  503;  Fniin  v.  Railway 
Co.,  89  Mo.  397,  14  S.  W.  557;  Texas  &  St.  L.  Ry.  Co.  v.  Rust  (C.  C.)  19  Fed. 
239;  Hennessy  v.  Metzger,  152  III.  505,  38  N.  E.  1058,  43  Am.  St.  Rep.  207; 
Curtis  V.  Van  Bergh,  161  N.  Y.  47,  .55  N,  E.  398;  Kunkel  v.  Wherry,  189 
Pa.  198,  42  AtJ.  112,  69  Am.  St.  Rep.  802;  Illinois  Cent  R.  Co.  v.  Cabinet 
Co.,  104  Tenu.  568,  58  S.  W.  303,  50  L.  R.  A.  729,  78  Am.  St.  Rep.  933:  Drum- 
heller  V.  Surety  Co.,  30  Wash.  530,  71  Pac.  25;  Malone  v.  City  of  Phila- 
delphia, 147  Pa.  416,  23  Atl.  628.  But  see,  contra,  where  the  stipulation 
"was  greatly  in  excess  of  any  possible  damage  from  the  delay.  Cochran  v. 
Railway  Co.,  113  Mo.  359,  21  S.  W.  6;  Clements  v.  Railroad  Co.,  132  Pa. 
445,  19  Atl.  27G;    Seaman  v.  Biemann,  108  Wis.  365,  84  N.  W.  490. 

87  Winch  V.  Ice  Co.,  80  N,  Y.  618;  Welch  v.  McDonald,  85  Yn.  500,  8  S. 
E.  711. 


§§  221-2:22)  rules  of  construction.  413 

for  liquidated  damages  as  penalties,  when  the  amount  on  the  face  of 
the  contract  is  out  of  all  proportion  to  the  possible  loss ;  and  many 
courts  declare  that  the  parties,  even  if  they  intended  to  fix  upon  the 
amount  stipulated  as  liquidated  damages,  will  nevertheless  be  limited 
to  the  recovery  of  actual  damages  if  the  amount  stipulated  for  is  so 
greatly  in  excess  of  the  actual  damages  that  it  is  in  effect  a  penalty. 
In  other  words,  the  real  question  is  "not  what  the  parties  intended,  but 
whether  the  sum  is,  in  fact,  in  the  nature  of  a  penalty ;  and  this  is  to 
be  determined  by  the  magnitude  of  the  sum,  in  connection  with  tlie 
subject-matter,  and  not  at  all  1)}-  the  words  or  the  understanding  of 
ttie^  parties";  The  intention  of  the  parties  cannot  alter  it."  "  Other 
courts,  on  the  other  hand,  maintain  that  in  such  cases  the  intention 
of  the  parties  must  govern,  and  that  whether  a  stipulation  to  pay  a 
sum  of  money  is  to  be  treated  as  a  penalty  or  as  an  agreed  ascertain- 
ment of  damages  is  to  be  determined  by  the  contract,  fairly  construed ; 
it  being  the  duty  of  the  court  always,  where  the  damages  are  uncer- 
tain and  have  been  liquidated  by  agreement,  to  enforce  the  contract.®* 
"It  may,  we  think,  fairly  be  stated,"  it  was  said  in  a  late  case  in  the  su- 
preme court  of  the  United  States, ^°°  "that  when  a  claimed  dispropor- 
tion has  been  asserted  in  actions  at  law  it  has  usually  been  an  excessive 
disproportion  between  the  stipulated  sum  and  the  possible  damages 
resulting  from  a  trivial  breach  apparent  on  the  face  of  the  contract,  and 
the  question  of  disproportion  has  been  simply  an  element  entering  into 
the  consideration  of  the  question  of  what  was  the  intent  of  the  parties, 
whether  bona  fide  to  fix  the  damages,  or  to  stipulate  the  payment  of  an 
arbitrary  sum  as  a  penalty,  by  way  of  security." 

(3)  If  a  debt  is  to  be  paid  by  installments,  it  is  not  imposing  a  pen- 
alty to  provide  that  on  default  in  any  one  payment  the  entire  balance 
of  unpaid  installments  shall  fall  due.^°* 

98  Jaquith  v.  Hudson,  5  Mich.  123.  See,  also,  Myer  v.  Hart,  40  Mich. 
517,  2.9  Am.  Rep.  553;  Jaqua  v.  Headington,  114  Ind.  300,  16  N.  E.  527; 
Brewster  v.  Edgerly,  13  N.  H.  275;  Condon  v.  Kemper,  47  Kan.  126,  27  Pae. 
829,  13  U  R.  A.  6*71;  Cotheal  v.  Talmage,  9  N.  Y.  551,  Gl  Am.  Dec.  716; 
Colwell  V.  Lawrence,  38  N.  Y.  71.  "The  intention  is  not  all  conti'oUing, 
for  in  some  cases  the  subject-matter  and  sm-roundings  of  the  contract  will 
control  the  intention  where  equity  absolutely  demands  it."  Streeper  v.  Wil- 
liams, 48  Pa.  450. 

9  9  Sun  Printing  &  Publishing  Ass'n  v.  Moore,  183  U.  S.  642.  22  Sup.  Ct 
240,  46  L.  Ed.  366.  See,  also,  BroolvS  v.  City  of  Wichita,  114  Fed.  297,  52 
C.  C.  A.  209;  Wood  v.  Paper  Co.,  121  Fed.  818,  58  C.  C.  A.  256;  Taylor  v. 
Newspaper  Co.,  83  Minn.  523,  86  N.  AV.  760,  85  Am.  St.  Rep.  473;  Knox 
Rock  Blasting  Co.  v.  Stone  Co.,  64  Ohio  St.  361,  60  N.  E.  563;  I-:mery  v.  Boyle. 
200  Pa.  249,  49  Atl.  779;  GARST  v.  HARRIS,  177  Mass.  72,  58  N.  E.  174; 
Guerin  v.  Stacy,  175  Mass.  595,  56  N.  E.  892. 

100  Sun  Printing  &  Publishing  Ass'n  v.  Moore,  183  U.  S.  642,  672,  22  Sup. 
Ct.   240,   46   L.   Ed.   366. 

^01  Protector  Loan  Co.  v.  Grice  (Ct.  App.)  5  Q.  B.  Div.  592;   Dean  v.  Nelson, 


414  INTERPRETATION  QF  CONTRACT.  (Ch.  10 

(4)  If  the  contract  contains  a  number  of  terms,  some  of  which  arc 
of  a  certain  value,  or  if  it  contains  a  number  of  terms  of  widely  dif- 
ferent value,  and  the  penalty  is  applied  to  a  breach  of  any  one  of  them, 
it  is  not  recoverable  as  Hquidated  damages,  however  strongly  the  par- 
ties may  have  expressed  their  intention  that  it  shall  be  so.^°^  In  a 
leading  case  on  this  point  the  defendant  had  agreed  to  act,  and  con- 
form to  all  the  regulations,  at  plaintifif's  theater  for  several  seasons, 
the  plaintiff  to  pay  him  £3.  6s.  8d.  for  every  night  that  the  theater 
should  be  open  for  performance,  and  it  was  agreed  that,  for  a  breach 
of  any  term  of  the  agreement  by  either  party,  the  one  in  default  should 
pay  the  other  i  1,000,  which  sum  was  thereby  declared  to  be  "liquidated 
and  ascertained  damages,  and  not  a  penalty."  The  court  held  that,  in 
spite  of  the  explicit  statement  of  the  parties  that  the  sum  was  not  to 
be  regarded  as  a  penalty,  it  must  be  so  regarded.  If  the  penal  clause 
had  been  limited  to  breaches  uncertain  in  their  nature  and  amount,  it 
might,  as  was  thought,  have  had  the  efifect  of  ascertaining  the  dam- 
ages ;  "but,"  it  was  said,  "in  the  present  case  the  clause  is  not  so  con- 
fined ;  it  extends  to  the  breach  of  any  stipulation  by  either  party.  If, 
therefore,  on  the  one  hand,  the  plaintiff  had  neglected  to  make  a  single 
payment  of  £3.  6s.  8d.  per  day,  or,  on  the  other  hand,  the  defendant 
had  refused  to  conform  to  any  usual  regulation  of  the  theater,  how- 
ever minute  or  unimportant,  it  must  have  been  contended  that  the 
clause  in  question,  in  either  case,  would  have  given  the  stipulated 
damages  of  ii,ooo.  But  that  a  very  large  sum  should  become  im- 
mediately payable  in  consequence  of  the  nonpayment  of  a  very  small 
sum,  and  that  the  former  should  not  be  considered  as  a  penalty,  appears 
to  be  a  contradiction  in  terms;  the  case  being  precisely  that  in  which 
courts  of  equity  have  always  relieved,  and  against  which  courts  of 
law  have,  in  modern  times,  endeavored  to  relieve,  by  directing  juries 
to  assess  the  real  damages  sustained  by  the  breach  of  the  agree- 
ment." "-^^ 

10  Wall.  158,  19  L.  Ed.  926.  So  of  a  stipulation  that,  if  interest  Is  not  paid, 
the  principal  shall  become  due.  Schooley  v.  Romain,  31  Md.  574,  100  Am. 
Dec.  87;    Mobray  v.  Leckie,  42  Md.  474. 

102  KEMBDE  V.  FARREN,  6  Bing.  141;  Carter  v.  Strom,  41  Minn.  522, 
43  N.  W.  394;  Watts  v.  Camors,  115  U.  S.  353,  G  Sup.  Ct.  91,  29  L.  Ed.  406; 
McPherson  v.  Robertson,  82  Ala.  459,  2  South.  333;  Lampman  v.  Cochran, 
16  N.  Y.  275;  Wilhelm  v.  Eaves,  21  Or.  194,  27  Pac.  1053,  14  L.  R.  A.  297; 
Hough  V.  Kugler,  36  Md.  180;  Daily  v.  Litchfield,  10  Mich.  29;  Trustees 
of  First  Orthodox  Congregational  Church  v.  Walrath,  27  Mich.  232;  Ti'ower 
V.  Elder,  77  111.  452;  Lyman  v.  Babcock,  40  Wis.  503;  Monmouth  Park 
Ass'n  V.  Warren,   55  N.   J.   Law,   598.   27  Atl.  932. 

103  KEMBLB  V.  FARREN,  (3  Bing.  141. 


§  223)  RULES   OF   CONSTRUCTION.  415 


SAME— JOINT  AND  SEVERAL  CONTRACTS. 

223.  'Whether  or  not  a  contract  xtrith  several  persons  on  either  or  both 
sides  is  to  be  construed  as  joint  or  several  depends  upon  the 
intention  of  the  parties  as  manifested  in  the  evidence  of  their 
agreenient.104     The  following  rules  may  be  stated: 

UABIIilTIES — (a)  A  promise  by  two  or  more  in  the  plural  number 
is  prima  facie  joint,  while  a  promise  in  the  singular  is  prima 
facie  several;  but  this  presumption  w^ill  yield  if,  from  the 
whole  agreement,  a  contrary  intention  appears. 

(b)  Subscriptions  by  a  number  of  persons  to  promote  some  common 
enterprise,  though  joint  in  form,  are  several  promises. 

RIGHTS — If  the  w^ords  will  admit  of  it,  the  contract,  as  regards  the 
promisees,  w^ill  be  joint  or  several,  according  as  their  interest 
is  joint  or  several. 

Joint  and  Several  Liabilities. 

In  all  written  contracts,  the  language  used  is  the  primary  guide  to 
the  meaning;  but  it  is  not  always  conclusive.  The  language  is  some- 
times ambiguous,  and  often  not  exclusive  of  an  intention  to  contract 
either  way.  In  such  cases  the  sense  must  be  derived  from  the  interests 
and  relations  of  the  parties  as  appearing  in  the  contract.^ °°  The  same 
is  true  of  oral  contracts  where  there  is  no  direct  evidence  of  the  in- 
tention. Wherever  the  promise  is  by  two  or  more  persons,  as  where 
the  words  "we  promise,"  etc.,  are  used,  the  liability  is  prima  facie  joint ; 
but  the  use  of  such  expressions  will  not  make  the  promise  joint  if, 
from  the  whole  instrument,  a  contrary  intention  appears. ^"^  Where 
the  promise  is  in  the  singular,  the  liabiHty  is  prima  facie  several ;  but, 
as  in  other  cases,  the  whole  instrument  may  show  a  contrary  inten- 
tion, and  this  intention  must  govern.^"'' 

In  the  case  of  subscriptions  by  a  number  of  persons  to  promote  some 
common  enterprise,  the  promises,  though  joint  in  form,  are  held  to  be 
several.     Each  subscriber  is  held  to  promise  severally  to  pay  the  amount 

104  1  Pars.  Cont  10;  Hall  v.  Leigh,  8  Cranch,  50,  3  L.  Ed.  4S4;  Olmstead 
v.  Bailer,  35  Conn.  584;  Eastman  v.  Wright,  6  Pick.  (Mass.)  31G;  WIL- 
LOUGHBY  V.  WILLOUGHBY,  5  N.  H.  244;  BOGGS  v.  CURTIN,  10  Serg. 
&  R.  (Pa.)  211;    Elliott  v.  Bell,  37  W.  Va.  834,  IT  S.  E.  3U!). 

108KEIGHTLEY  v.  WATSON,  3  Exch.  716;  Streichen  v.  Fehleisen,  112 
Iowa,  612,  84  N.  W.  715,  51  L.  R.  A.  412. 

106  KING  V.  HOARE,  13  Mees.  &  W.  494;  Bartiett  v.  Bobbins,  5  Mete. 
(Mass.)  184;  Bhle  v.  Purdy,  6  Wend.  (N.  Y.)  029;  New  Haven  &  N.  Co.  v. 
Hayden,  119  Mass.  361;  Trenton  Potteries  Co.  v.  Olipbant,  o8  N.  J.  Eq.  oO.. 
43  Atl.  723,  46  L.  R.  A.  255,  78  Am.  St  Rep.  612;    McArthur  v.  Board,  119 

Iowa,  5()2.  '93  N.  W.  oSO.  ...    ,^  ^t    w 

107  MARCH  V.  WARD,  Peake,  130;  Dill  v.  Wliite,  52  Wis.  456,  9  N.  W. 
404-  Fond  du  Lac  Harrow  Co.  v.  Haskins,  51  Wis.  135,  8  N.  W.  15;  \an 
Alstyne  v.  Van  Slyck,  10  Barb.  (N.  Y.)  387;  Hemmenway  v.  Stone,  7  Mass. 
58,  5  Am.  Dec.  27;   Slater  v.  Magraw,  12  Gill  &  J.  (Md.)  265. 


416  INTEllPRETATION   OF   CONTRACT.  (Cb.  10 

of  his  subscription,  and  an  action  against  all  the  subscribers  jointly 
will  not  lie.  It  clearly  appears  from  the  character  of  such  a  contract 
that  each  subscriber  only  intends  to  bind  himself  for  his  own  sub- 
scription, and  this  intention  must  prevail,  notwithstanding  the  joint 
form  of  the  promise.*"* 

As  we  have  seen,  these  rules  are  to  a  great  extent  modified  by  statute 
in  most  of  the  states, *°* 

Joint  and  Several  Rights. 

With  respect  to  the  rights  of  several  persons  under  such  contracts, 
the  rule  of  construction  has  been  thus  stated:  ^^'^  "A  contract  will  be 
construed  to  be  joint  or  several,  according  to  the  jriterests  of  the  par- 
ties, if  the  words  are  capable  of  that  construction,  or  even  if  not  incon- 
sistent with  it.  If  the  words  are  ambiguous,  or  will  admit  of  it,  the 
contract  will  be  joint  if  the  interest  be  joint,  and  it  will  be  several  if 
the  interest  be  several.***  But  a  contract  entered  into  with  several 
persons,  in  respect  of  the  same  matter  or  interest,  cannot  by  any  words 
be  made  so  as  to  entitle  them  both  jointly  and  severally."  **^ 

108  Davis  V.  Belford,  70  Mich.  120,  37  N.  W.  919;  Hall  v.  Thayer,  12  Mete. 
(Mass.)  130:  Davis  &  Rankin  Bldg.  &  Mfg.  Co.  v.  Barber  (C.  C.)  51  Fed. 
148;  Chicago  Bldg.  &  Mfg.  Co.  v.  Graham,  78  Fed.  83,  23  C.  C.  A.  657;  Davis 
&  Ranliin  Bldg.  &  Mfg.  Co.  v.  Booth,  10  Ind.  App.  364,  37  N.  E.  818;  Cornish 
V.  West  82  Minn.  107,  84  N.  W.  750,  52  L.  R.  A.  355.  And  see  Waddy 
Bluegi-ass  Creamery  Co.  v.  Manufacturing  Co.,  103  Ky.  579,  45  S.  W.  895. 
Contra,  Davis  v.  Shafer  (C.  C.)  50  Fed.  764. 

109  Ante,  p.  379. 

110  Leake,  Cont.  218. 

111  Eccleston  v.  Clipsham,  1  W.  Saund.  1.53;  SORSBIE  v.  PARK,  12  Mees. 
&  W.  146;  Pickering  v.  De  Rochemont,  45  N.  H.  67;  Gould  v.  Gould,  6 
Wend,  (N.  Y.)  263;  Appleton  v.  Bascom,  3  Mete.  (Mass.)  169;  Capen  v.  Bar- 
roAVS,  1  Gray  (Mass.)  376;  Lombard  v.  Cobb,  14  Me.  222;  Dimcan  v.  Willis, 
51  Ohio  St.  433,  38  N.  E.  13;  Pennville  Natural  Gas  &  Oil  Co.  v.  Thomas 
21  Ind.  App.  1,  51  N.  E.  351;  Montana  Min.  Co.  v.  Milling  Co.,  19  Mont. 
313,  48  Pac.  305;  Curry  v.  Railway  Co.,  58  Kan.  6,  48  Pac.  579.  Where 
two  persons  are  accepted  as  depositors  by  a  savings  bank,  and  botli  sign  the 
depositors'  book,  and  the  moneys  are  made  payable  to  either,  the  contract 
is  "With  both  jointly,  and  has  the  incident  of  surviYorship,  Dunn  v.  Hough- 
ton (N.  J,  Ch.)  51  Atl.  71. 

112  Ante,  p.  384,  note  133. 

r) 


2-21) 


DISCUAIIGE   OF  CONTUACT. 


m 


CHAPTER  XI. 

DISCHARGE  OF  CONTRACT. 

224.  In  General. 

225-220.  By  Agreement— In  General. 
227-228.  Waiver,  Cancellation,  or  Rescission. 

229-230.  Substituted  Contract. 

231.  Form  of  Discbarge  by  New  Agreement. 

232.  Conditions  Subsequent. 

233.  By  Performance — In  GeneraL 

234.  Payment. 

235.  Tender. 

236-237.  By  Breacb— In  General. 

23S.  Forms  of  Discbarge  by  Breach. 

239-240.  Renunciation  of  Contract. 

241.  Impossibility  Created  by  Party. 

242.  Breach  by  Failure  of  Performance. 
243-244.  Independent  Promises. 
245-249.  Conditional  Promises. 

250.  By  Impossibility  of  Performance. 

251.  By  Operation  of  Law. 

252.  Merger. 

253.  Alteration  of  Written  Instrument 

254.  Proceedings  in  Banliruptcy. 

255.  Remedies  on  Breach  of  Contract. 
256-259.  Damages. 

200.  Specific  Performance. 

261.  Discbarge  of  Right  of  Action. 

262.  By  the  Consent  of  the  Parties. 

263.  By  Judgment. 
264-265.  By  Lapse  of  Time. 


IN  GENERAL. 

224.   The  modes  in  Trhicli  a  contract  may  be  discharged  are  as  folloxra; 

(a)  By  agreement. 

(b)  By  performance. 

(c)  By  breach. 

(d)  By  impossibility  of  performance. 

(e)  By  operation  of  law. 

It  remains  to  consider  the  modes  in  which  the  contractual  tie  may 
be  loosed,  and  the  parties  wholly  freed  from  their  rights  and  liabilities 
under  the  contract.  In  dealing-  with  this  part  of  the  subject  we  shall 
consider,  not  only  the  mode  in  which  the  original  contract  may  be  dis- 
charged, but,  in  case  of  its  being  discharged  by  breach,  the  mode  in 
which  the  right  of  action  arising  thereupon  may  be  extinguished.^ 

1  Anson,  Cont.  (4th  Ed.)  257. 
Clark  Cont.  (2d  Ed.)— 27 


il8  DISCHARGE   OP  CONTRACT.  (Ch.  11 


DISCHARGE  OF  CONTRACT  BY  AGREEMENT. 

1^25k  A  contract  may  be  discharged  by  an  agreement  to  tbat  effect 
betiveen  tbe  parties.     This  may  be— 

(a)  By  waiver,  cancellation,  or  rescission. 

(b)  By  a  substituted  contract. 

(c)  By    the    happening    of    conditions    subsequent,    expressed    or    im- 

plied in  the  contract. 

226.  Such  an  agreement  must  possess  all  the  elements  requisite  to  the 
formation  of  any  other  valid  agreement.  There  are  soiae  ex- 
ceptions as  to  the  necessity  for  consideration,  ivhich  will  be 
hereafter  noticed. 

As  it  is  their  agreement  which  binds  the  parties,  so  by  their  agree- 
ment they  may  be  loosed  from  the  contractual  tie.  It  is  scarcely  neces- 
sary to  say  that  to  render  an  agreement  effective  as  a  discharge  it  must 
be  a  valid  agreement ;  and,  to  be  so,  it  must  be  accompanied  by  all  the 
elements,  such  as  communication  of  mutual  intention,  real  consent, 
parties  having  capacity,  etc.* 


SAME— -WAIVER,  CANCELI^ATION,  OR  RESCISSION. 

227.  A  contract  may  be  discharged  by  an  express  agreement  that  it 

shall  no    longer  bind  either  party.      This   process   is   called   a 
^^aiver,  cancellation,  or  rescission  of  the  contract. 3 

228.  A  consideration  is  necessary  to  support  such  an  agreement,   ex 

cept: 
EXCEPTIONS— (a)    Where  the  agreement  is  under  seaL 
(b)    A  negotiable  instrument  may  be  discharged  by  its  mere  surrender 

w^ith  an  intent  to  discharge  it. 

In  the  absence  of  a  consideration,  a  promise  to  forego  the  right  to 
demand  performance  of  a  contract  would  be  nudum  pactum  and  void. 
It  has  often  been  said  that  "a  simple  contract  may,  before  breach,  be 
waived  or  discharged  without  a  deed  and  without  consideration;"  but 
this  is  inaccurate.  A  consideration,  or  a  deed  dispensing  with  the 
necessity  for  a  consideration,  is  always  essential.  Where  the  contract 
is  wholly  executory,  a  mere  agreement  between  the  parties,  that  it  shall 
no  longer  bind  them,  is  valid,  for  the  discharge  of  each  by  the  other 
from  his  liabilities  under  the  contract  is  a  sufficient  consideration  for 

2  Murray  v.  Harway.  56  N.  Y.  387;  Wheeler  v.  Railroad  Co.,  115  U.  S. 
29,  5  Sup.  Ct.  1001,  1160,  29  L.  Ed.  341;  Stix  v.  Koiilston,  88  Ga.  743,  15  S. 
E.  826;  O'Donnell  v.  Brand,  85  Wis.  97.  55  N.  W.  154;  WOOD  v.  MORIARTY, 
16  R.  I.  201,  14  Atl.  855;  Lauer  v.  Lee,  42  Pa.  165;  Smith  v.  Watson,  82  Va. 
712,  1  S.  E.  96. 

8  Anson,  Cent.   (4th  Ed.)  25J^260. 


^ 


§§  227-228)  BT   AGREEMENT.  419 

the  promise  of  the  other  to  forego  his  riglits.*  If  the  agreement  is  not 
mutual, — that  is,  if  it  is  a  waiver  of  his  rights  by  one  party  only, — 
there  is  no  consideration,  and  the  agreement  is  void."*  If  a  contract 
has  been  executed  on  one  side,  an  agreement  that  it  shall  no  longer  be 
binding,  without  more,  is  void  for  want  of  consideration."  To  illus- 
trate these  distinctions :  If  a  person  agrees  to  buy  goods  from  another, 
or  to  perform  services  for  him,  and  the  other  agrees  to  pay  therefor, 
the  contract  may  be  discharged  by  a  simple  agreement  to  that  effect, 
so  long  as  the  goods  or  services  have  not  been  delivered  or  performed, 
and  the  money  has  not  been  paid.  After  performance  on  either  side, 
however,  a  promise  by  the  party  so  performing  not  to  require  perform- 
ance by  the  other  would  not  be  binding  milgss  under  seal  or  supported 
by  a  consideration. 

"^Tn  England  there  is  an  exception  to  this  rule  in  the  case  of  bills  of 
exchange  and  promissory  notes.  The  rights  of  the  holder  of  such  in- 
struments may  there  be  waived  and  discharged  without  any  considera- 
tion for  their  waiver.''  In  this  country  the  exception  is  not  recog- 
nized. Such  instruments,  in  this  respect,  stand  on  the  same  footing 
as  any  other  simple  contract,®  with  this  exception,  namely,  that,  if  the 
instrument  itself  is  destroyed  or  surrendered  for  the  purpose  of  dis- 
charging the  debt,  it  will  so  operate  without  any  consideration,"  The 
reason  for  the  exception  is  that  there  is  a  valid  executed  gift  of  the 
instrument.^  ° 

4  ROLLINS  V.  MARSH,  128  Mass.  IIG;  Cutter  v.  Cochrane.  116  Mass. 
408;  Blood  v.  Enos,  12  Vt.  G25,  36  Am.  Dec.  363;  Kelly  v.  Bliss,  54  Wis. 
187,  11  N.  W.  488;  Blagborne  v.  Hunger,  101  Mich.  ,S75,  fiG  N.  W.  657;  Perkins 
V.  Hoyt,  35  Mich.  506;  Flegal  v.  Hoover,  156  Pa.  276,  27  Atl.  162;  Farrar 
V.  Toliver,  88  111.  40S;  Hobbs  v.  Brick  Co.,  157  Mass.  109,  31  N.  E.  756; 
Windham  v.  Doles,  59  Ga.  265;  Brown  v.  Lumber  Co.,  117  N.  C.  287,  23 
S.  E.  253;    ante,  p.  127. 

6  King  V.  Gillett,  7  Mees.  &  W.  55. 

0  COLLYER  V.  MOULTON,  9  R.  I.  90,  98  Am.  Dec.  370;  Crawford  v. 
Millspaugh,  13  Johns.  (N.  Y.)  87;  KIDDER  v.  KIDDER,  33  Pa.  268;  Moore 
V.  Locomotive  Works,  14  Mich.  266;  Maness  v.  Henry,  96  Ala.  454,  11  South. 
410;  Landon  v.  Hutton,  50  N.  J.  Eq.  500,  25  Atl.  953;  Davidson  v.  Burke, 
143  111.  139,  32  N.  E.  514,  36  Am.  St.  Rep.  367;    ante,  p.  129. 

1  Foster  v.  Dawber,  6  Exch.  839. 

8  Crawford  v.  Millspaugh,  13  .Johns.  (N.  Y.)  87;  Seymour  v.  Mintura,  17 
Johns  (N.  Y.)  169,  8  Am.  Dec.  380;  Bragg  v.  Danielson.  141  ISIass.  195,  4  N.  E. 
622;  Smith  v.  Bartholomew,  1  Mete.  (Mass.)  276,  25  Am.  Dec.  365;  Campbell's 
Estate,  In  re,  7  Pa.  100,  47  Am.  Dec.  503. 

0  Larkin  v.  Hardenbrook,  90  N.  Y.  333,  43  Am.  Rep.  176;  Slade  v.  Mutrie, 
156  Mass.  19,  30  N,  E.  1()8;  Vanderbeck  v.  Vanderbeck,  30  N.  J.  Eq.  265; 
Paxton  V.  Wood,  77  N.  C.  11;  Campbell's  Estate,  In  re.  7  Pa.  100,  47  Am.  Dec. 
.503;  Albert's  Ex'rs  v.  Ziegler's  Ex'rs.  29  Pa.  50;  Stewart  v.  Hidden,  13  Minn. 
43  (Gil.  20);    Ellsworth  v.  Fogg,  35  Vt.  355. 

io  Slade  v.  Mutrie,  156  Mass.  19,  30  N.  E.  168. 


420  DISCHAIIGE   OF   CONTRACT.  (Cli.  11 


SAME— SUBSTITUTED  CONTRACT. 

229.  A    contract    may    be    discharged    by    the    substitution    of    a    new 

contract,!  1  and  tliis  results — 

(a)  'Where  a  new  contract  is  expressly  substituted  for  the  old  one. 

(b)  Where  a  ne^tr  contract  is   inconsistent  vtrith   the   old  one. 

(c)  W^here  ncTV  terms  are  agreed  upon. 

(d)  WTiere  a  new  party  is  substituted  for  one  of  the  original  parties 

by  agreement  of  all  three. 

230.  As  in  the  case  of  contracts  generally,  the  agreement  of  the  par- 

ties may  be  evidenced  by  their  conduct. 

The  difference  between  this  mode  and  a  discharg-e  by  waiver  is  that 
a  discharge  by  waiver  is  a  total  obHteration  of  the  contract,  while  by 
this  mode  a  new  bond  between  the  parties  is  substituted  in  the  place  of 
the  old  one.  A  contract  may  be  thus  discharged  either  by  the  making 
of  an  entirely  new  and  independent  contract  relating  to  the  same  sub- 
ject, or  merely  by  the  introduction  of  new  terms.  In  the  latter  case 
the  new  contract  consists  of  the  new  terms  and  so  much  of  the  original 
contract  as  remains  unchanged.  If,  for  instance,  parties  who  have 
contracted  for  the  construction  of  a  building  according  to  specifica- 
tions, and  at  a  price,  to  be  paid  partly  in  cash  and  partly  in  some  other 
way,  should  afterwards  agree  upon  a  change  in  the  specifications  and 
an  increase  in  the  cash  payment,  there  would  be  substituted  for  the 
original  contract  a  new  contract,  consisting  of  the  new  terms  and  the 
unchanged  terms  of  the  original. ^^ 

A  new  contract  inconsistent  with  the  original  impliedly  ..discharges 
the  latter  without  an  express  provision  to  that  effect ;  ^^  and,  if  new 
terms  are  agreed  upon,  they  will  by  implication  waive  those  terms  of 
the  original  which  are  inconsistent  with  them,  and  a  new  contract  will 
result,  consisting,  as  we  have  seen,  of  the  new  terms  and  the  unchanged 

11  McCREERY  v.  DAT,  119  N.  Y.  1,  23  N.  E.  198;  MUNROE  v.  PERKINS, 
9  Pick.  (Mass.)  298,  20  Am.  Dec.  475;  Hurlock  v.  Smith,  39  Md.  436;  King 
T.  Faist,  IGl  Mass.  449,  37  N.  E.  456;  ROLLINS  v.  MARSH,  128  Mass.  116; 
Cutter  V.  Coclirane,  116  Mass.  408;  Farrar  v.  Toliver,  88  111.  408;  Windham 
V.  Doles,  59  Ga.  265;  Brown  v.  Everhard,  52  Wis.  205,  8  N.  W.  725;  Tingley 
V.  Land  Co.,  9  Wash.  34,  36  Pac.  1098;  Sioux  City  Stock- Yards  Co.  v.  Packing 
Co.,  110  Iowa,  396,  81  N.  W.  712;  Andre  v.  Graebner,  126  Mich.  116,  85  N.  W. 

Dreifus  v.  Exposition 
r04.     As  to  payment  by 
negotiable  insti'ument,  see  post,  p.  435. 

12  Green  v.  Paul,  155  Pa.  126,  25  Atl.  867;  Hannibal  H.  Chandler  &  Co. 
V.  Knott.  86  Iowa,  113,  53  N.  W.  88;   McNish  v.  Reynolds,  95  Pa.  483. 

1?  Patmore  v.  Colbin-n,  1  Cromp.  M.  &  R.  65;  Renard  v.  Sampson,  12  N.  Y. 
561;  Stow  V.  Russell,  36  111.  18;  Howard  v.  Railroad  Co.,  1  Gill  (Md.)  311; 
Chrisman  v.  Hodges,  75  Mo.  413;  Paul  v.  Meservey,  58  Me.  419;  HaiTison  v. 
I>odge,  116  111.  279,  5  N.  E.  543;  Domenico  v.  Association  (D.  C.)  112  Fed.  554, 
557. 


464;  Brown  v.  Lumber  Co.,  117  N.  C.  287,  23  S.  E.  253; 
Salvage  Co.,  194  Pa.  475,  45  Atl.""  S70.  75  Am.  St.  Rep.  7C 


§§  229-230)  BY   AGREEMENT.  421 

or  consistent  terms  of  the  original  contract.^*  An  illustration  is  fur- 
nished by  cases  in  which  a  contractor  undertakes  building  operations 
for  another  which  are  to  be  completed  by  a  certain  time,  in  default  of 
which  a  sum  is  to  be  paid  as  compensation  for  the  delay.  If,  while 
the  building-  is  in  progress,  an  agreement  is  made  for  additional  work, 
by  which  it  becomes  impossible  to  complete  the  building  within  the 
time  stipulated,  it  is  universally  held  that  the  subsequent  agreement  is 
so  far  inconsistent  with  the  first  as  to  amount  to  a  waiver  of  the  orig- 
inal stipulation  as  to  time;  and,  since  an  agreement  may  be  made  by 
conduct  as  well  as  by  words,  this  principle  would  apply  where  perform- 
ance within  the  specified  time  is  prevented  by  the  conduct  of  the  other 
party. ^^ 

Where  it  is  claimed  that  a  contract  has  been  discharged  by  a  new 
contract,  or  by  the  introduction  of  new  terms,  the  intention  to  dis- 
charge must  distinctly  appear,  to  give  rise  to  such  an  implication,  from 
the  inconsistency  of  the  new  terms  with  the  old  ones.^°  A  mere  post- 
ponement of  performance  for  the  convenience  of  one  of  the  parties,  or 
an  agreement  to  accept  performance  at  a  different  place  than  that 
stipulated,  does  not  operate  as  a  discharge.^ ^  This  question  sometimes 
arises  in  contracts  for  the  sale  and  delivery  of  goods,  where  the  de- 
livery is  to  extend  over  some  time.  The  purchaser  requests  a  post- 
ponement of  delivery,  and  then  refuses  to  accept  the  goods  at  all,  al- 
leging that  the  contract  was  discharged  by  the  alteration  of  the  time 
of  performance;  that  a  new  contract  was  thereby  substituted,  which 
is  void  for  noncompliance  with  the  statute  of  frauds.  The  courts, 
however,  have  always  recognized  "the  distinction  between  a  substitu- 
tion of  one  agreement  for  another,  and  a  voluntary  forbearance  to  de- 
liver at  the  request  of  another,"  ^'*  and  will  not  regard  the  latter  as  af- 
fecting the  rights  of  the  parties  further  than  this :  that,  if  a  man_asks 
to  have  performance  of  his  contract  postponed,  he  does  so  at  his  own 

1*  THORNHILL  v.  NEATS,  8  C.  B.  (N.  S.)  831;  Teal  v.  Bilby,  123  U.  S.  572. 
8  Sup.  Ct.  239,  31  L.  Ed.  2C3;  Cornish  v.  Suydam,  'JO  Ala.  G20,  13  South.  118; 
Farrar  v.  Toliver,  88  111.  408;  ROLLINS  v.  MARSH,  128  Mass.  IIG;  ROGERS 
V.  ROGERS,  139  Mass.  440,  1  N.  E.  122;  Housekeeper  Pub.  Co.  v.  Swift,  97 
Fed.  290,  38  C.  C.  A.  187. 

15  THORNHILL  v.  NEATS.  8  C  B.  (N.  S.)  831.  And  see  Cornish  v.  Suy- 
dam, 99  Ala.  620,  13  South.  118;  Stewart  v.  Keteltas,  36  N.  Y.  388;  Under- 
wood V.  Wolf,  131  111.  425,  23  N.  E.  5I>8,  19  Am.  St.  Rep.  40;  Howard  v.  Kail- 
road  Co.,  1  GUI  (Md.)  311;   Tluckostein  v.  Kelly,  152  Pa.  631,  25  Atl.  747. 

16  Mlllsaps  V.  Bank,  71  I\Iiss.  361,  13  South.  903;  Uhlig  v.  Barnum,  43  Neb.- 
581,  61  N.  W.  749. 

17  HICKMAN  V.  HAYNES,  L.  R.  10  C.  P.  606;  I-awson  v.  Hogan,  93  N.  Y. 
39;  Watldns  v.  Hod?es,  6  Har.  &  J.  (Md.)  38;  Franklin  Fire  Ins.  Co.  v. 
Hamill,  5  Md.  170;  Bticon  v.  Cobb,  45  111.  47;  McCombs  v.  McKennan,  2 
"Watts  &  S.  (Pa.)  216,  37  Am.  Dec.  505;  Thomson  v.  Poor,  147  N.  Y.  402,  42 
N.  E.  13. 

18  HICKMAN  V.  HAYNES,  L.  R.  10  C.  P.  606. 


422  DISCHARGE   OF   CONTRACT.  (Ch.  11 

j;islt;  for,  if  the  market  value  of  the  goods  which  he  should  have  ac- 
cepted at  the  earlier  date  has  altered  at  the  latter  date,  the  rate  of  dam- 
ages may  be  assessed,  as  against  him,  either  at  the  time  when  the  per- 
formance should  have  taken  place,  or  when,  by  nonperformance,  the 
contract  was  broken,  or  when  he  ultimately  exhausted  the  patience  of 
the  vendor,  and  definitely  refused  to  perform  the  contract.^® 

Again,  a  contract  may  be  discharged  by  the  introduction  of  new  par- 
ties into  the  original  agreement,  whereby  a  new  contract  is  create.d^.in 
which  the  terms  remain  the  same,  but  the  parties  are  differerrtr-  This 
is  termed  a  "novation."  We  have  already  spoken  of  it  as  an  apparent 
exception  to  the  rule  that  the  rights  and  liabilities  under  a  contract 
cannot  be  assigned  at  law.^"  Such  a  substitution  may  be  made  (i)  by 
/express  agreement,  or  (2)  by  conduct  of  the  parties  indicating  acquies- 
'cence  in  a  change  of  liability.     If,  for  instance,  A,  owes  B.  $100,  and 

B,  owes  C.  $100,  it  may  be  agreed  between  all  three  that  A.  shall  pay 

C.  instead  of  paying  B.,  so  that  B.  thereby  terminates  his  legal  rela- 
tions with  both  A.  and  C.^^  The  consideration  for  A.'s  promise  to  pay 
C.  is  the  discharge  of  B.  by  C. ;  the  consideration  of  B.'s  discharge  of 
A.  is  the  extinguishment  of  his  debt  to  C. ;  and  the  consideration  of 
C.'s  discharge  of  B.  is  the  promise  of  A.  It  would  not  be  enough  for 
A.  to  say  to  C,  "I  will  pay  you  instead  of  B.,"  and  to  afterwards  sug- 
gest the  arrangement  to  B.  and  receive  his  assent;  ^^  nor  would  it  be 
enough  for  B.  to  authorize  A.  in  writing  to  pay  to  C,  and  for  A.  to 
acknowledge  the  paper. -^  All  three  must  enter  into  the  agreement, 
and  the  original  liability  must  be  extinguished.  This  is  essential,  be- 
cause it  is  the  promise  of  each  that  is  the  consideration  for  the  promise 
of  the  others.^* 

18  Anson,  Cont.  (4th  Ed.)  261;  Ogle  v.  Earl  Vane,  L.  R.  2  Q.  B.  275,  L.  R. 
3  Q.  B.  272. 

20  Ante,  p.  362. 

21  Tatlock  V.  Harris,  3  Term  R.  174;  HEATON  v.  ANGIER,  7  N.  H.  397, 
28  Am.  Dec.  353;  Sterling  v.  Ryan,  72  Wis.  3G,  37  N.  W.  572,  7  Am.  St.  Rep. 
818;  McKINNEY  v.  ALVIS,  14  111.  33;  Litchfield  v.  Garratt,  10  Mich.  4215; 
MeClellan  v.  Robe,  93.1nd.  298;  Mulgrew  v.  Cocharen,  9G  Mich.  422,  56  N.  W. 
70;  Id.,  98  Mich.  532,  57  N.  W.  739;  Atwood  v.  Town  of  Mt.  Holly,  65  Vt. 
121,  20  Atl.  491;  Byrd  v.  Bertrand,  7  Ark.  321;  Foster  v.  Paine,  63  Iowa,  85. 
IS  N.  AV.  699;    Gardner  v.  Caylor,  24  Ind.  App.  521,  56  N.  E.  134. 

22  Cuxon  V.  Chadley,  3  Bam.  &  C.  591;  BARNES  v.  INSURANCE  CO.,  56 
Minn.  38,  57  N.  W.  314,  45  Am.  St.  Rep.  438. 

2  3  LIVERSIDGE  v.  BROADBENT,  4  Hurl.  &  N.  603.     Ante,  p.  363. 

24  LIVERSIDGE  v.  BROADBENT,  4  Hurl.  &  N.  G03;  Cuxon  v.  Chadley, 
3  Barn.  &  C.  591;  Wood  v.  Moriarty,  16  R.  I.  201,  14  Atl.  855;  First  Nat. 
Bank  v.  Hall,  101  U.  S.  50,  25  li.  Ed.  822;  Hard  v.  Burton,  62  Vt.  314,  20 
Atl.  269;  SPYCHER  v.  WERNER,  74  Wis.  456,  43  N.  W.  161,  5  L.  R.  A.  414; 
McKINNEY  V.  ALVIS,  14  111.  33;  Smith  v.  Watson,  82  Va,  712,  1  S.  E.  96; 
Black  V.  De  Camp,  78  Iowa,  718,  43  N.  W.  625;  Bowcn  v.  Railroad  Co., 
34  S.  C.  217,  13  S.  E.  421;  Haubert  v.  Mausshardt  SO  Cal.  433,  26  Pac.  899; 
iNIorrison  v.  Kendall,  6  Ind.  App.  212,  33  N.   E.  370;    Linneman  v.  Moross' 


§§  229-230)  BY   AGREEMENT.  423 

As  we  have  said,  such  a  substitution  and  discharge  may  arise  other- 
wise than  by  express  agreement ;  it  may  arise  from  the  conduct  of  the 
parties  indicating  acquiescence  in  a  cliange  of  HabiHty.  If  a  person, 
for  instance,  enters  into  a  contract  with  two  others,  and  the  latter  agree 
between  themselves  that  one  of  them  shall  retire  from  the  contract  and 
cease  to  be  liable  upon  it,  the  first-mentioned  party  may  either  insist 
upon  the  continued  liability  of  the  party  remaining,  or  may  treat  the 
contract  as  broken  and  discharged  by  such  renunciation  of  his  lia- 
bilities by  the  party  so  attempting  to  withdraw.  If,  however,  under 
some  circumstances,  the  first-mentioned  party,  after  he  becomes  aware 
of  the  retirement  of  one  of  the  other  parties,  continues  to  deal  with 
the  remaining  party  as  though  no  change  lias  taken  place,  he  acquiesces, 
and  may  be  considered  to  have  entered  into  a  new  contract  to  accept 
the  sole  liability  of  the  party  so  remaining,  and  cannot  hold  the  other 
to  his  original  contract.  Cases  of  this  sort  arise  where  a  member  re- 
tires from  a  partnership,  after  the  firm  has  entered  into  a  contract,  and 
it  is  subsequently  sought  to  hold  him  liable  thereon.  "I  apprehend 
the  law  to  be  now  settled,"  said  Parke,  B.,  "that  if  one  partner  goes  out 
of  a  firm,  and  another  comes  in,  the  debts  of  the  old  firm  may,  by  the 
consent  of  all  the  three  parties, — the  creditor,  the  old  firm,  and  the 
new  firm, — be  transferred  to  the  new  firm."  ^^  Moreover,  a  retired 
partner  may  be  discharged  by  the  creditor's  adoption  of  the  other  part- 
ners as  his  sole  debtors,  although  no  new  partner  has  been  introduced 
into  the  firm.^^  An  agreement  to  discharge  a  retired  partner,  and 
look  only  to  a  continuing  partner,  is  not  inoperative  for  want  of  con- 
sideration.-^ And  when  the  new  firm  agrees  to  assume  the  liabilities 
of  the  old,  slight  circumstances  will  support  an  inference  of  assent  on 


Estate,  98  Mich.  178,  57  N.  W.  103.  39  Am.  St.  Rep.  528;  Campbell  v.  Clay,  4 
Colo.  App.  551,  36  Pac.  909;  Butterfield  v.  Hartshorn,  7  N.  H.  345,  26  Am. 
Dec.  741;  Cornwell  v.  Megins,  39  Minn.  407,  40  N.  W.  610;  Levy  v.  Ford, 
41  La.  Ann.  873,  6  South.  671.  Cf.  Clough  v.  Giles,  M  N.  H.  73,  5  Atl.  885; 
Wolters  V.  Thomas  (Cal.)  32  Pac.  565;  Casey  v.  Miller,  3  Idaho  (Hasb.)  567, 
32  Pac.  195. 

25  Hart  V.  Alexander,  2  Mees.  &  W.  484.  And  see  Ludington  v.  Bell,  77 
N.  Y.  138.  33  Am.  Rep.  601;  Filipini  v.  Stead,  4  Misc.  Rep.  405,  23  N.  Y.  Supp. 
1061;  Cf.  Ayer  v.  Kiluer,  148  Mass.  408,  20  N.  E.  1(».  But  see  Wadhams  t. 
Page,  1  Wash.  St  420,  23  Pac.  462;  Id.,  6  Wash.  103,  32  Pac.  1068;  Campbell 
V.  Floyd,  153  Pa.  84,  25  Atl.  1033.  Where  a  creditor  of  a  partnership,  after 
dissolution,  accepts  the  note  of  some  of  the  partners  in  payment  of  the  firm 
debt,  intending  that  it  shall  satisfy  the  original  obligation,  the  other  partner 
is  discharged.  Waydell  v.  Luer,  3  Denio  (N.  Y.)  410;  Millerd  v.  Thorn,  56 
N.  Y.  402;  Ludington  v.  Bell,  supra;  Powell  v.  Blow.  34  Mo.  480;  Stone  v. 
Chamberlin,  20  Ga.  259;  Maxwell  v.  Day,  45  Ind.  509.  But  not  if  there  Is 
no  such  intention.     Post,  p.  43G,  note  82. 

2  6  York  V.  Orton,  65  Wis.  6,  26  N.  W.  166. 

27  Thompson  v.  Percival,  5  Barn.  &  Ad.  925;    Backus  v.  Fobes,  20  N.  Y 
204;   COLLYER  v.  MOULTON,  9  R.  1.  90,  98  Am.  Dec.  370. 

T 


424  DISCHARGE   OF   CONTRACT.  (Ch.  11 

the  part  of  a  creditor  who  had  notice  of  the  dissolution  to  a  novation.^" 
In  the  case  of  discharge  by  substituted  agreement,  the  change  of 
rights  and  Habilities,  and  consequent  extinction  of  those  which  before 
existed,  form  the  consideration  on  each  side  for  the  new  contract."® 
On  principle,  it  would  seem  that,  if  a  person  should  refuse  to  perform 
a  contract  simply  because  he  would  suffer  a  loss  by  performing,  a 
promise  by  the  other  party  to  pay  him  more,  or  to  accept  less,  than 
originally  agreed  upon,  to  induce  him  to  go  on  with  the  contract,  would 
be  without  consideration.  We  have  already  seen  that  on  this  ques- 
tion the  authorities  are  not  in  accord.^"  y^  ^ 

SA3VIE-FORM  OF  DISCHARGE  BY  NEW  AGREEMENT. 

231.    T3ie  general  rule  is  that  a  contract  must  be  discliarged  in  the 
same  form  as  that  in  Ttrhich  it  •was  made.      Therefore. 

(a)  A    contract    under    seal    can    only   be    discharged   by   agreement, 

■wrhere  the  agreement  is  under  seal;  but  by  the  iveight  of  au- 
thority, in  this  country,  at  least,  the  rule  does  not  apply  where 
a  parol  contract  rescinding  or  modifying  a  contract  under  seal 
has  been  acted  upon,  so  that  it  xjrould  be  inequitable  to  hold 
the  parties  to  their  original  contract- 

(b)  A  parol   contract  may  be   discharged  by  xp^riting  or  by   wrord   of 

mouth,  TO^hether  or  not  the  original  contract  is  in  -writing,  ex- 
cept that— 
EXCEPTION — WTiere  the  original  w^ritten  contract  was  w^ithin  the 
statute  of  frauds,  though  an  absolute  discharge  by  rescission 
may  take  place  by  w^ord  of  mouth,  a  discharge  by  substituted 
agreement  must,  by  the  -weight  of  authority,  be  in  writing. 

The  general  rule  of  the  common  law  being  that  a  contract  can  only 
be  discharged  in  the  same  form  as  that  in  which  it  was  made,  it  fol- 
lows that  an  agreement,  to  operate  as  a  discharge  or  modification  of  a 
previous  contract  under  seal,  must  also  be  under  seal.  The  parties  to 
a  deed  cannot,  at  common  law,  discharge  their  obligation  by  a  parol 
agreement.^ ^  This  rule  is,  however,  subject  to  some  qualifications  or 
exceptions. 

In  the  first  place,  it  is  possible  for  them  to  make  a  parol  contract 
which  creates  obligations  separate  from,  and  yet  substantially  at  vari- 
ance witli,  the  deed,  so  that  it  in  effect  contravenes  the  terms  of  the 

28  Regester  v.  Dodge  (C.  C.)  G  Fed.  6;  Shaw  v.  McCregory,  105  Mass.  yC; 
Tysen  v.  SomerviUe,  35  Fla.  219,  17  South.  5G7. 

2  9  Note  11,  supra.  so  Ante,  p.  127. 

81  SPENCE  T.  HBALEY,  8  Ex.  6G8;  WEST  V.  BLAKEWAY,  2  Man.  &  G. 
729;  Allen  v.  Jaquish,  21  \Tend.  (N.  Y.)  G28;  Thompson  v.  Brown,  7  Taunt. 
e.r>0;  SPENCE  V.  HEALEY,  8  Esch.  608;  Cordwert  v.  Hunt,  8  Taunt.  59<>; 
Woodruff  V.  Dobbins,  7  Blackf.  (Ind.)  582;  Hogencamp  v.  Ackerman.  24  N. 
J.  Law,  133;  McMurphy  v.  Garland,  47  N.  H.  316;  Leavitt  v.  Stem,  159  111. 
526,  42  N.  E.  869. 


§  231)  BY   AQKEEMENT.  425 

deed,  and  gives  a  right  of  action  to  which  the  deed  furnishes  no  an- 
swer. In  a  case  illustrative  of  this  point  a  person  had  let  rooms  to 
another,  by  contract  under  seal,  for  a  certain  time,  at  a  rent  to  be 
ascertained  in  a  certain  way,  and  after  his  death  his  administrator  en- 
tered into  a  parol  agreement  with  the  lessee  by  which,  in  considera- 
tion of  a  certain  sum  to  be  paid  by  the  lessee,  to  be  taken  as  a  reason- 
able rent,  neither  party  should  be  called  upon  to  perform  his  part  un- 
der the  deed.  The  lessee  failed  to  make  the  payment  so  agreed  upon, 
and  the  administrator  sued  him  upon  the  parol  contract.  The  lessee 
contended  that  the  parol  contract  was  an  attempt  to  vary  the  deed  by 
an  instrument  not  under  seal,  and  that  a  performance  of  this  contract, 
being  no  discharge  of  the  deed,  would  leave  him  liable  to  his  obligation 
under  the  deed.  The  court  held,  however,  that  the  parol  contract 
created  a  new  obligation ;  and  that  a  performance  of  this  new  con- 
tract would  furnish  an  equitable  answer  to  an  action  on  the  contract 
under  seal ;  and  that  the  administrator  was  entitled  to  sue  on  the  parol 
contract.^* 

Again,  where  the  obligee  does  something  to  prevent  performance  by 
the  obligor,  as  where  he  orally  consents  to  an  extension  of  the  time  for 
perfomiance,  and  the  oral  waiver  is  acted  upon,  when  he  sues  the  ob- 
ligor for  nonperformance,  he  cannot  object  to  parol  evidence  of  his 
conduct.""' 

There  is  an  exception  very  generally  recognized  in  this  country, 
though  not  in  England,  it  seems. ^*  The  cases  are  not  very  clear  as  to 
the  limits  of  this  exception,  but  they  seem  to  establish  the  nde  that 
where  a  contract  under  seal  has  been  rescinded  or  modified  by  a  subse- 
quent parol  agreement,  and  this  agreement  has  been  acted  upon  by  the 
parties,  and  they  have  changed  their  situation  so  that  it  would  be 
inequitable  to  hold  them  to  the  original  contract,  the  parol  agreement 
may  be  shown ;  and  this  rule  is  recognized  at  law  as  well  as  in  equity,"* 
Though  the  language  of  most  of  the  opinions  iti  these  cases  is  as  broad 

82  NASH  V.  ARMSTKONG,  10  C.  B.  (N.  S.)  2.59. 

33  Fleming  v.  Gilbert,  3  Johus.  (N.  Y.)  528;  Nicholas  T.  Austin,  82  Va. 
817,  1  S.  E.  132;  Franklin  Fire  lus.  Co.  v.  Hamill,  5  Md.  170;  Baltimore 
Fire  Ins.  Co.  v.  McGowan,  IG  Md.  47;   Lawrence  v.  Miller,  86  N.  Y.  131. 

34  The  rule  is  recogmized  in  equity.  STEEDS  v.  STEEDS,  22  Q.  B.  Div. 
537. 

3B  Chesapeake  &  O.  Canal  Co.  v.  Ray,  101  U.  S.  522,  25  L.  Ed.  792;  Mc- 
CREEllY  V.  DAY,  119  N.  Y.  1,  23  N.  E.  198,  G  L.  R.  A.  503,  10  Am.  St.  Rep. 
793;  Le  Fevre  v.  Le  Fevre.  4  Serg.  &  R.  (Pa.)  241,  8  Am.  Dec.  G96;  Phelps  v. 
Seely,  22  Grat.  (Va.)  573;  MUNROE  v.  PERKINS,  9  Pick.  (Mass.)  298,  20 
Am.  Dec.  475;  Van  Syckel  v.  O'Hearn,  50  N.  J.  Eq.  173,  24  Atl.  1024;  White 
V.  Walker,  31  lU.  422;  Lawrence  t.  Dole,  11  Vt.  549;  Hydeville  Co.  v.  Slate 
Co.,  44  Vt.  395;  Green  v.  Wells,  2  Cal.  584;  HASTINGS  v.  LOVEJOY,  140 
INIass.  261,  2  N.  E.  776;  Herzog  v.  Sawyer,  Gl  Md.  344;  Dickerson  v.  Com- 
missioners, 6  Ind.  128,  63  Am.  Dec.  373;  TPIOMSON  v.  POOR,  147  N.  Y.  402, 
42  N.  E.  13.     See,  also,  Palmer  v.  Britania  Co.,  188  111.  508,  59  N.  E.  247. 


42G  DISCHARGE   OP   CONTRACT.  (Cll.  11 

as  the  rule  stated,  it  will  be  found  that  some  of  them  will  fall  within 
one  or  the  other  of  the  qualifications  of  the  rule  mentioned  above. 

A  parol  or  simple  contract  may  be  discharged  by  writing  or  by 
word  of  mouth.  It  is  immaterial  that  the  original  contract  is  in  writ- 
ing, for,  as  we  have  seen,  the  writing  is  not  the  agreement,  but  the  evi- 
dence of  the  agreement  only.^®  There  is  an  exception  in  cases  where 
the  original  agreement  was  required  by  the  statute  of  frauds  to  be  in 
writing.  In  such  a  case  an  absolute  discharge  might  probably  take 
place  by  word  of  mouth. ^''  If,  however,  the  discharge  is  not  a  simple 
rescission,  but  is  by  substitution  of  a  new  contract,  either  by  express 
provision,  or  by  implication  because  of  inconsistency  between  it  and 
the  original,  the  better  opinion  requires  a  writing.  The  new  contract, 
resting  in  parol,  would  be  unenforceable  for  noncompliance  with  the 
statute,  and  could  not  discharge  the  original  contract.^^  There  are 
some  cases  in  conflict  with  this  statement.^®  Parol  evidence  is  ad- 
missible, however,  to  prove  substantial  performance  when  the  per- 

3  8  Goss  v.  Nugent,  5  Barn.  &  Adol.  65;  Brown  v.  Everhard,  52  Wis.  205, 
8  N.  W.  725;  Swain  v.  Seamens,  9  Wall.  254,  19  L.  Ed,  554;  Blagbome  v. 
Hunger,  101  Mich.  375,  59  N.  W.  657;  McNish  v.  Reynolds,  95  Pa.  483; 
Allen  V.  Sowerby,  37  Md.  410;  WIggin  v.  Goodwin,  63  Me.  389;  Aldrich  v. 
Price,  57  Iowa,  151,  9  N.  W.  376,  10  N.  W.  339 ;  Utley  v.  Donaldson,  94  U.  S. 
29,  24  L.  Ed.  54;  Teal  v.  Bilby,  123  U.  S.  572,  8  Sup.  Ct.  239,  31  L.  Ed.  263; 
Flanders  v.  Fay,  40  Vt.  316;  Robinson  v.  Batchelder,  4  N.  H.  40;  Thurston 
V.  Ludwig,  6  Ohio  St.  1,  67  Am.  Dec.  338;  Deshazo  t.  Lewis,  5  Stew.  &  P. 
(Ala.)  91,  24  Am.  Dec.  769;  Low  v.  Forbes,  18  111.  568;  Jones  v.  Grantham, 
80  Ga.  472,  5  S.  E.  764.  Conti-a:  Herreshoff  v.  Misch,  21  R.  I.  524,  45  All. 
145  (cannot  be  varied).  Contra,  by  statute,  in  some  states,  where  the  oral 
agreement  is  unexecuted.  Benson  v.  Shotwell,  103  Gal.  163,  37  Pac.  147; 
Mettel  V.  Gales,  12  S.  D.  632,  82  N.  W.  181.  See,  also,  ante,  pp.  392,  394. 
Even  a  provision  that  no  modifications  shall  be  made  except  in  writing,  may 
be  changed,  by  parol.  A.  J,  Anderson  Electric  Co.  v.  Lighting  Co.  (Tex.  Civ. 
App.)  27' S.  W.  501. 

3  7  Gorman  v.  Salisbury,  1  Vern.  240;  Wulschner  v.  Ward,  115  Ind.  219,  17 
N.  B.  273;  Hurley  v.  Schring,  62  Hun,  621,  17  N.  Y.  Supp.  7;  Buel  v.  Miller, 
4  N.  H.  196.     As  to  novation,  see  ante,  p.  68. 

3  8  NOBLE  V.  WARD,  L.  R.  2  Exch.  135;  Goss  v.  Lord  Nugent,  5  Barn.  & 
Adol.  58;  Burns  v.  Real-Estate  Co.,  52  Minn.  31,  53  N.  W.  1017;  Hill  v. 
Blake,  97  N.  Y.  216;  HICKMAN  v.  HAYNES,  L.  R.  10  C.  P.  598;  Blood  v. 
Goodrich,  9  Wend.  (N.  Y.)  68,  24  Am.  Dec.  121;  Dana  v.  Hancock,  30  Vt. 
616;  Abell  v.  Munson,  18  Mich.  30(>,  100  Am.  Dec.  165;  Musselman  v.  Stoner, 
31  Pa.  265;  Wilson's  Assignee  v.  Beam  (Ky.)  14  S.  W.  362;  Carpenter  v. 
Galloway,  73  Ind.  418;  Rucker  v.  Harrington,  52  Mo.  App.  481;  Augusta 
Southern  R.  Co.  v.  Smith  &  Kilby  Co.,  106  Ga.  864,  33  S.  B.  28. 

so  Stearns  v.  Hall,  9  Cush.  (Mass.)  31;  CUMMINGS  v.  ARNOLD,  3  Mete. 
(Mass.)  486,  37  Am.  Dec.  155;  Negley  v.  Jeffers,  28  Ohio  St.  90;  Lee  v. 
Hawks,  08  Miss.  669,  9  South.  828;  McClelland  v.  Rush,  150  Pa.  57,  24  Atl. 
354.  And  see  Houston  v.  Sledge,  101  N.  C.  <>40,  8  S.  E.  145,  2  L.  R.  A.  4S7; 
Johnston  v.  Trask,  116  N.  Y.  136,  22  N.  E.  377,  5  L.  R.  A.  630.  15  Am.  St. 
Rep.  394;  Blaucliard  v.  Trim,  38  N.  Y.  21i5;  Browne,  St.  Frauds,  §  411;  2 
Reed,  St.  Frauds,  §  458. 


§  232)  BY   AGREEMENT.  427 

fonnance  is  completed  and  accepted,  and  such  performance  is  a  de- 
fense by  way  of  accord  and  satisfaction.*" 


SAME— PROVISIONS  FOR  DISCHARGE  CONTAINED  IN  THE  CON- 
TRACT—CONDITIONS  SUBSEQUENT. 

232.  A  contract  may  contain  ivithin  itself  express  or  implied  provi- 
sions for  its  determination  under  certain  circumstances.  These 
provisions  are  conditions  subsequent.  Such  a  discharge  may 
take  place  by  reason  of— 

(a)  The  nonfulfillment  of  a  specified  term  of  the  contract. 

(b)  The    occurrence    of   a   particular   event. 

(c)  The  exercise  by  one  of  the  parties  of  an  option  to  determine  the 

contract,  the  option  being  given  either— 

(1)  By  express  provision  in  the  contract,  or 

(2)  By  a  custom  or  usage  forming  part  of  the  contract.*! 

Discharge  on  NonfiilfiUment  of  Term. 

In  the  first  of  these  three  cases — that  in  which  the  nonfulfiUment  of 
a  specified  term  of  the  contract  gives  to  one  of  the  parties  the  option 
of  treating  the  contract  as  discharged — we  seem  to  be  approaching  very 
near  to  the  subject  of  the  discharge  of  contract  by  breach,  for  this,  too, 
may  arise  from  the  nonfulfiHment  of  a  term  which  the  parties  consider 
to  be  vital  to  the  contract.  There  is,  however,  this  difference  between 
a  nonfulfillment  contemplated  by  the  parties,  the  occurrence  of  which 
shall,  it  is  agreed,  make  the  contract  determinable  at  the  option  of  one, 
and  a  breach,  or  nonfulfillment  not  contemplated  or  provided  for  by 
the  parties.  In  the  former  case  the  parties  have,  while  in  the  latter 
they  have  not,  looked  beyond  the  immediate  objects  of  the  contract. 
In  the  former  case  the  default  which  is  to  constitute  a  discharge  is 
specified  by  the  agreement  of  the  parties,  while  in  the  latter  it  must  al- 
ways be  a  question  of  fact  or  of  construction  whether  or  not  the  de- 
fault was  in  a  matter  vital  to  the  contract,  so  as  to  operate  as  a  dis- 
charge by  breach.  An  illustration  of  this  mode  of  discharge  is  afford- 
ed where  a  chattel  is  sold  with  the  understanding  that  it  may  be  re- 
turned if  it  is  not  satisfactory,  or  does  not  answer  the  description  given 
by  the  seller.  In  a  leading  case  on  this  point,  a  horse  had  been  sold 
under  a  contract  by  which  it  was  stipulated  that,  if  it  did  not  comply 
with  a  certain  warranty,  the  buyer  might  return  it  by  a  specified  time. 
It  did  not  comply  with  the  warranty,  and  was  returned  within  the  time, 
but  the  seller  refused  to  accept  it,  because  it  had  been  injured,  though 

*o  Moore  v.  Campbell,  10  Esch.  323,  per  Parke,  B.;  Leather  Cloth  Co.  v. 
Hieronimus,  L.  R.  10  Q.  B.  140;  Long  v.  HartAvell,  34  N.  J.  Law,  IIG,  127; 
Ladd  V.  King.  1  R.  I.  224,  231,  51  Am.  Dec  G24;  Swain  v.  Seamens,  9  Wall. 
254,  19  L.  Ed.  554. 

41  .Anson,  Cont.   (4th  Ed.)  203-2G7. 


428  DISCHARGE   OF   CONTRACT.  (CL  11 

by  no  fault  of  the  buyer.  It  was  held  that  the  buyer  was  entitled  to 
return  it.  "The  effect  of  the  contract,"  it  was  said,  "was  to  vest  the 
property  in  the  buyer  subject  to  a  right  of  rescission  in  a  particular 
event,  when  it  would  revest  in  the  seller."  *^ 

So,  where  a  servant  is  employed  for  a  specified  time  to  work  to  the 
master's  satisfaction,  the  master  may  have  the  right  to  discharge  him 
when  he  becomes,  in  good  faith,  dissatisfied  with  him.'*^ 

Occurrence  of  Specified  Event. 

The  parties  may  introduce  into  the  terms  of  their  contract  a  provi- 
sion that  the  fulfillment  of  a  condition,  or  the  occurrence  of  an  event, 
shall  discharge  them  both  from  further  liabilities  under  the  contract. 
Such  a  condition  subsequent  is  well  illustrated  by  the  case  of  a  bond, 
which  is  a  promise  subject  to,  or  defeasible  upon,  a  condition  expressed 
in  the  bond.  Another  illustration  is  in  case  of  the  excepted  risks  in  a 
charter  party.  In  a  contract  of  that  nature  the  shipowner  agrees  with 
the  charterer  to  make  the  voyage  on  the  terms  expressed  in  the  con- 
tract, the  act  of  God,  public  enemies,  fire,  collision,  and  other  dangers 
of  the  seas,  etc.,  excepted.  The  occurrence  of  such  an  excepted  risk 
releases  the  shipowner  from  the  strict  performance  of  the  contract; 
and  if  it  should  take  place  while  the  contract  is  wholly  executory,  and 
frustrate  the  entire  enterprise,  the  parties  are  altogether  discharged.** 
Another  illustration  of  such  conditions  is  found  in  contracts  with  com- 
mon carriers.  Bills  of  lading  generally  contain  exceptions  by  which 
the  liability  of  the  carrier  to  deliver  the  goods  is  to  cease  if  their  lo?-  or 
destruction  is  caused  by  certain  perils."  A  common  carrier  is  said 
to  warrant  or  insure  the  safe  delivery  of  goods  intrusted  to  him,  but 

42  Head  v.  Tattersall,  L.  R.  7  Exch.  7,  14.  And  see  RAY  v.  THOINIPSON,  12 
Cush.  (Mass.)  281,  59  Am.  Dec.  187;  Kimball  &  Austin  Mfg.  Co.  v.  Vroman,  35 
Mich  310,  24  Am.  Rep.  558;  Buswell  v.  Bicknell,  17  Me.  344,  35  Am.  Dec.  2G2; 
Schlosinger  v.  Stratton,  9  R.  I.  578;  McKinney  v.  Bradlee,  117  Mass.  321; 
Robinson  v.  Fairbanks,  81  Ala.  132,  1  South.  552.  Cf.  Sturm  v.  Boker,  150 
U.  S.  312,  14  Sup.  Ct.  99,  33  L.  Ed.  1093.  It  is  otherwise  where  the  injury 
is  caused  by  the  fault  of  the  purchaser.  RAY  v.  THOMPSON,  12  Cush. 
(Mass.)  281,  59  Am.  Dec.  187.  If  no  time  is  specified  within  which  the  option 
to  rescind  must  be  exercised,  a  reasonable  time  is  implied.  Quinn  v.  Stout, 
31  Mo.  160;  Hickman  v.  Shimp,  109  Pa.  16;  Washington  v.  Johnson,  7 
Humph.   (Tenn.)   4G8. 

4  3  Frary  v.  Ruhber  Co.,  52  Minn.  264,  53  N.  W.  1156,  18  L.  R.  A.  644 
Koehler  v.  Buhl,  94  Mich.  496,  54  N.  W.  157;  Allen  v.  Compress  Co.,  101 
Ala.  574,  14  South.  362;  Magee  v.  Lumber  Co.,  78  Minn.  11,  80  N.  W.  781 
Gwynne  v.  Hitchner,  66  N.  J.  Law.  97,  48  Atl.  571;  Id.,  67  N.  J.  Law,  654, 
52  Atl.  997;  Kendall  v.  West,  196  111.  221,  63  N.  E.  683,  89  Am.  St.  Rep.  317 
Ajid  see  Crawford  v.  Publishing  Co.,  163  N.  Y.  404,  57  N.  E.  616.  Post,  p 
432. 

4*  Geipel  v.  Smith,  L.  R.  7  Q.  B.  404;  Graves  v.  The  Calvin  S.  Edwards, 
1  C.  C.  A.  533,  50  Fed.  477. 

4B  STORER  V.  GORDON,  3  Maule  &  S.  308;  Southern  Exp.  Co.  v.  Glenn, 
16  Lea  (Tenn.)  472,  1  S.  W.  102;    Haas  v.  Railroad  Co.,  81  Ga.  792,  7  S.  E. 


§  232)  BY   AGUEEMENT.     •  429 

his  promise,  even  without  express  stipulation,  is  defeasible  upon  the 
occurrence  of  certain  excepted  risks,  such  as  the  act  of  God  *"  and  in- 
juries arising-  from  defects  inherent  in  the  thing  carried.*^  This  limi- 
tation of  liability  is  implied  in  every  contract  with  a  common  car- 
rier, and  the  occurrence  of  the  risks  exonerates  him  from  liability  for 
loss  incurred  through  their  agency.** 

Discharge  Optional  with  Notice. 

Again,  a  continuing  contract  may  contain  a  provision  making  it 
determinable  at  the  option  of  one  of  the  parties,  upon  certain  terms. *° 
Where,  for  instance,  a  contract  of  employment  provides  that  it  may 
be  terminated  by  either  party  on  giving  a  month's  notice,  and  the 
servant  or  agent  is  dismissed  on  a  month's  notice,  the  contract  is  dis- 
charged and  not  broken.'^''     Such  terms  may  be  incorporated  in  con- 

G29;  Slater  v.  Railroad  Co.,  29  S.  C.  96,  6  S.  E.  93G;  Norris  v.  SaUway  Co., 
23  Fla.  182,  1  South.  475,  11  Am.  St.  Kep.  355. 

*8  "By  the  act  of  God,  is  meant  any  accident  produced  by  physical  causes 
which  are  irresistible;  such  as  lightning,  storms,  perils  of  the  sea,  eaiiJi- 
quakes,  Inundations,  sudden  death,  or  illness.  The  act  of  Grod  excludes  all 
idea  of  hmuan  agency."  Fish  v.  Chapman,  2  Ga.  349,  46  Am.  Dec.  393; 
McArthur  v.  Sears,  21  Wend.  (N.  Y.)  190.  Some  courts,  however,  have  used 
the  term  as  synonymous  with  "inevitable  accident."  Neal  v.  Saunderson, 
2  Smedes  &  M.  (Miss.)  572,  41  Am.  Dec.  609;  Blythe  v.  Railroad  Co.,  15  Colo. 
333,  25  Pac.  702,  11  L.  R.  A.  615,  22  Am.  St.  Kep.  403;  Crosby  v.  Fitch,  12 
Conn,  410,  419,  31  Am.  Dec.  745;  Walpole  v.  Bridges,  5  Blackf.  (Ind.)  222. 
In  an  English  case  the  court  of  common  pleas  held  that,  to  constitute  the 
"act  of  God,"  a  loss  must  arise  from  "such  a  direct  and  violent  and  sudden 
and  irresistible  act  of  nature"  as  could  not  be  foreseen,  or,  if  foreseen,  pre- 
vented. Nugent  V.  Smith,  1  C.  P.  Div.  19.  And  see  The  Niagara  v.  Cordes, 
21  How.  7,  16  L.  Ed.  41.  The  court  of  appeal  reversed  the  decision,  and  held 
that  "it  is  not  necessary  to  prove  that  it  was  absolu^ly  impossible  for  the 
carrier  to  prevent  it;  but  that  it  is  sufficient  to  prove  that  by  no  reasonable 
precaution  under  the  circumstances  could  it  have  been  prevented."  Nugent 
V.  Smith,  1  C.  P.  Div.  441.  See,  also,  Memphis  &  C.  R.  Co.  v.  Reeves.  10 
Wall.  176,  19  L.  Ed.  909;  Nashville  &  C.  R.  Co.  v.  David,  6  Heisk,  (Tenn.) 
261,  19  Am.  Rep.  594;  Palmer  v.  Railroad  Co.,  101  Cal.  187,  35  Pac.  630; 
Morrison  v.  Davis,  20  Pa.  171,  57  Am.  Dec.  695. 

■47  Clarke  v.  Railroad  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205;  Penn  v.  Rail- 
road Co.,  49  N.  Y.  204,  10  Am.  Rep.  355;  Cragin  v.  Railroad  Co.,  51  N.  Y.  61, 
10  Am.  Rep.  559;  Smith  v.  Railroad  Co.,  12  Allen  (Mass.)  531,  90  Am.  Dec. 
166;  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165,  4  Am.  Rep.  466; 
Evans  v.  Railroad  Co.,  Ill  Mass.  142,  15  Am.  Rep.  19;  Lindsley  v.  Railroad 
Co.,  36  Minn.  539,  33  N.  W.  7,  1  Am.  St.  Rep.  692 

48  Nugent  V.  Smith,  1  C.  P.  Div.  423. 

49  Morrissey  v.  Broomal,  37  Neb.  766,  56  N.  W.  383;  Bour  v.  KimbaU,  46 
III.  App.  327. 

BO  Jenkins  v.  Long,  8  Md.  132.  And  so  it  is  with  any  other  kind  of  contract 
which  contains  an  exi:»ress  provision  that  it  may  be  terminated  at  any  time 
on  giving  notice.  Geiger  v.  Railroad  Co.,  41  Md.  4;  Oregon  &  W.  Mortg. 
Sav.  Bank  v.  Mortgage  Co.  (C,  C.)  35  Fed.  22;  Adriance  v.  Rutheford,  57 
Mich.  170,  23  N.  W.  718. 


430  DISCHARGE   OF   CONTRACT.  (Ch.  11 

tracts  by  usage."^  If  a  continuous  contract  fixes  no  time  during 
which  it  is  to  last,  and  no  time  is  fixed  by  law  or  by  usage,  it  may  be 
determined  at  the  will  of  either  party  by  notice.'^  A  contract  of  hir- 
ing, for  instance,  if  no  time  is  specified,  is  generally  construed  as  a 
hiring  at  will  ,*  and  the  fact  that  wages  are  payable  at  specified  periods 
does  not  necessarily  show  that  the  hiring  was  for  a  specified  period.'^ 
In  every  contract  of  hiring,  certain  provisions  for  discharge  are  im- 
plied. If  the  servant  proves  incompetent,  for  instance,  or  if  he  acts 
in  such  a  way  as  to  injure  the  employer's  business,  or  is  otherwise 
guilty  of  breach  of  duty,  the  latter  may  rightfully  discharge  him."** 
This,  however,  is  a  breach  of  contract  by  the  servant  or  agent,  and  the 
master  or  principal  is  discharged  by  the  breach. 


DISCHARGE   OF   CONTRACT   BY  PERFORMANCE. 

233.   A  contract  is  discharged  by  performance— 

(a)  'Where  a  promise  has  been  given  upon  an  execnted  consideration^ 

and  is  performed  by  the  promisor. 

(b)  'Where  one  promise  has  been  given  in  consideration  of  another, 

and  both  are  performed,  bb 

Performance  of  a  contract  which  amounts  to  an  extinction  of  the 
obligation  must  be  distinguished  from  performance  which  discharges 
one,  only,  of  the  parties  from  further  liabilities  under  it.  Where  a 
promise  has  been  given  upon  an  executed  consideration,  the  promisee 
has  performed  his  part  in  the  formation  of  the  contract,  and  perform- 
ance of  his  promise  by  the  promisor  discharges  the  contract.  All  has 
been  done  on  both  ^ides  that  could  be  required  to  be  done  under  the 
contract.  Where  the  contract  is  wholly  executory, — that  is,  where 
one  promise  has  been  given  in 'consideration  of  another, — performance 
by  one  party  does  not  discharge  the  contract,  though  it  discharges  him 

61  Parker  v.  Ibbetson,  4  C.  B.  (N.  S.)  347. 

52  Coffin  V.  Landis,  46  Pa.  426;  Peacock  v.  Cummings,  Id.  434;  Greenburg 
V.  Early,  4  Misc.  Rep.  99,  23  N.  Y.  Supp.  1009;  Atti-ill  v.  Patterson,  58  Md. 
226;    Walker  v.  Deuison,  86  111.  142. 

^•3  Babcock  &  Wilcox  Co.  v.  Moore,  62  Md.  161;  McCullough  Iron  Co.  v. 
Cai-penter,  67  Md.  554,  11  Atl.  176;  Beach  v.  Mullin,  34  N.  J.  Law,  343;  Tat- 
terson  v.  Manufactiu-ing  Co.,  106  Mass.  56;  Franklin  Min.  Co.  v.  Harris,  24 
:Mich.  115;  Prentiss  v.  Ledyard,  28  Wis.  131;  Haney  v.  CaldweU,  35  Ark. 
156. 

54  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704;  Adams  Exp.  Co.  v.  Trego,  35 
Md.  47;  iTeatherberry  v.  Odell  (C.  C.)  7  Fed.  641;  Callo  v.  Brouncker,  4  Car. 
&  P.  518;  Beeston  v.  Caller,  2  Car.  &  P.  607;  Newman  v.  Reagan,  63  Ga. 
755;  Drayton  v.  Reid,  5  Daly  (N.  Y.)  442;  FILLIEUL  v.  ARMSTRONG.  7 
Adol.  &  E.  557. 

66  Alison,  Cont.  (4tli  Ed.)  270. 


§  233)  BY   PERFORMANCE.  431 

from  further  liability  under  it.     Each  must  have  done  his  part,  in  or- 
der that  performance  may  be  a  discharge  of  the  contract. 

Whether  or  not  a  contract  has  been  performed,  so  far  as  the  person 
performing  the  contract  is  concerned,  must  be  answered  by  reference 
to  the  operation  of  contract,  while,  in  so  far  as  the  performance  is  con- 
cerned, it  must  be  answered  by  reference  to  the  construction  of  con- 
tract. 

Substantial  Performance. 

At  common  law,  a  strict  and  literal  performance  in  accordance  with 
the  terms  of  the  contract  is,  as  a  rule,  required.'^"  In  equity,  on  the 
other  hand,  contracts  not  capable  of  literal  performance  will  be  de- 
creed with  compensation  for  deficiencies  where  there  is  a  variance,  pro- 
vided the  contract  can  be  performed  in  substance. ''''  Even  at  law  the 
rule  generally  prevails  that  where  one  of  the  parties  has  endeavored 
in  good  faith  to  perform  and  has  substantially  performed  his  contract, 
and  thereby  conferred  on  the  other  party  a  substantial  benefit,  although 
he  has  failed  to  perform  in  some  particulars,  he  may  recover  the 
contract  price,  less  the  amount  of  the  damages  sustained  by  the  other 
party  by  reason  of  the  failure  of  strict  performance.^^  To  justify  a 
recovery  on  the  contract  so  substantially  performed,  the  omissions  or 
deviations  must  not  be  willful ;  and  "they  must  be  slight  or  susceptible 
of  remedy,  so  that  an  allowance  out  of  the  contract  price  will  give 
the  other  party  substantially  what  he  contracted  for,"  ^®  This  rule 
has  its  most  frequent  application  in  building  contracts,  where  the  con- 

56  Dauchey  v.  Drake,  85  N.  Y.  407;  Glacius  v.  Black,  50  N.  Y.  145,  10  Am. 
Kep.  449;  Smith  v.  Brady.  17  N.  Y.  173,  72  Am.  Dec.  442;  Harris  v.  Sharpies, 
202  Pa.  243,  51  Atl.  965,  58  L.  R.  A.  214.  But  there  may  be  performance, 
within  the  fair  intent  and  meaning  of  the  contract,  if  the  departure  from 
the  letter  of  the  contract  is  trifling.  Drew  v.  Goodhue,  74  Vt  436,  62  Atl. 
971. 

5  7  East  on,  Eq.  558. 

58  HAYWAKD  V.  LEONARD,  7  Pick.  (Mass.)  181,  19  Am.  Dec.  2G9;  NO- 
LAN V.  WHITNEY,  88  N.  Y.  648;  Blood  v.  Wilson,  141  Mass.  25,  6  N.  E. 
302;  Pinches  v.  Lutheran  Church,  55  Conn.  183,  10  Atl.  204;  Todd  v.  Hunting- 
ton, 13  Or.  9,  4  Pac.  295;  Katz  v.  Bedford,  77  Cal.  319,  19  Pac.  523.  1  L.  R. 
A.  826;  Leeds  v.  Little,  42  Minn.  414,  44  N.  W.  309;  Gallagher  v.  Sharpless. 
134  Pa.  134,  19  Atl.  491;  Keeler  v.  Herr,  157  111.  57,  41  N.  E.  750;  Ashley  v. 
Henahan,  56  Ohio  St.  559,  47  N.  E.  573;  Desmond-Dunne  Co.  v.  Friedman- 
Doscher  Co.,  1(52  N.  Y.  480,  56  N.  E.  995;  Spence  v.  Ham,  163  N.  Y.  220,  57 
N.  E.  412,  51  L.  R.  A.  238;  Palmer  v.  Meriden  Britannia  Co.,  188  111.  508,  59 
N.  E.  247;  Philip  Hiss  Co.  v.  Pitcairn  (C,  C.)  107  Fed.  425:  Jones  &  Hotch- 
Idss  Co.  V.  Davenport,  74  Conn.  418,  50  Atl.  1028.  Cf.  ^tna  Iron  &  Steel 
Works  V.  Kossuth  County,  79  Iowa,  40,  44  N.  W.  215. 

5  9  Elliott  V.  Caldwell  43  Minn.  357.  45  N.  W.  845,  9  L.  R.  A.  52.  See,  also, 
Gillespie  Tool  Co.  v.  Wilson,  123  Pa.  19,  16  Atl.  36;  Van  Clief  v.  Van  Vech- 
teu,  130  N.  Y.  571,  29  N.  E.  1017;  Marchant  v.  Hayes,  117  Cal.  GG9,  49  Pac. 
840;  Anderson  v.  Todd.  8  N.  D.  1.58,  77  N.  W.  599;  Cornish,  Curtis  &  Greene 
Co.  V.  Association,  82  Minn.  215,  84  N.  W.  724;    Harris  v.  Sharpies,  202  Pa 


432  DISCHARGE   OF  CONTRACT.  (Ch.  11 

tractor's  labor  and  materials  have  added  value  to  the  owner's  land, 
which  the  owner  must  necessarily  retain  and  have  the  benefit  of.  It 
seems  that  in  such  cases,  where  there  is  a  material  breach,  the  liability 
is  quasi  contractual,  the  plaintiff  being  allowed  to  recover  because  of 
the  unjust  enrichment  of  the  other  party,  and  consequently  that  the 
amount  of  recovery  should  be,  not  necessarily  the  contract  price  less 
the  damages  resulting  from  failure  of  strict  performance,  but,  as  has 
recently  been  held  in  Massachusetts,  the  additional  value  to  the  land  of 
the  defendant  by  reason  of  the  plaintiff's  labor  and  materials,  and  that 
the  burden  is  on  the  plaintiff  to  show  a  benefit,  and  its  amount.®*^  In 
many  cases,  however,  this  value  can  be  ascertained  by  deducting  from 
the  contract  price  the  cost  of  completing  the  building  or  article  ac- 
cording to  the  specifications.®^ 

Performance  to  Satisfaction  of  Promisor. 

Where  it  is  a  term  of  the  contract  that  the  performance  shall  be 
satisfactory  to  the  other  party,  it  is  a  question  of  interpretation  whether 
his  obligation  is  conditional  upon  actual  satisfaction  or  reasonable 
satisfaction.  In  contracts  in  which  the  subject-matter  involves  the  per- 
sonal taste  or  judgment  of  the  promisor,®^  for  example,  a  suit  of 
clothes,®^  a  picture,*^*  a  play,  or  other  literary  production,®^  the  courts 
construe  the  contract  as  making  the  promisor  the  sole  judge;  and  al- 
though the  compensation  of  the  promisee  may  thus  be  dependent  on 
the  promisor,  who  unreasonably  withholds  his  satisfaction,  the  prom- 
isee cannot  be  relieved  from  the  contract  into  which  he  has  voluntarily 
entered.  The  tendency  of  the  courts  is  perhaps  to  construe  all  con- 
tracts providing  for  the  satisfaction  of  the  promisor  in  the  same  man- 
ner.®"    The  promisor  must,  however,  act  in  good   faith.®^     On  the 

243,  51  Atl.  965,  58  L,  R.  A,  214.  But  see  Danforth  v.  Freeman,  69  N.  H. 
4GG,  43  Atl.  621. 

60  Gillis  V.  Cobe,  177  Mass.  584,  59  N.  E.  455. 

61  See  Kelly  v.  Town  of  Bradford,  33  Vt.  35;  Pinches  v.  Lutheran  Church, 
55  Conn.  185,  10  Atl.  264;   Norwood  v.  Lathrop,  178  Mass.  208,  59  N.  E.  650. 

6  2  Andrews  v.  Belfield,  2  C.  B.  (N.  S.)  779;  McGarren  v.  McNulty,  7  Gray 
(Mass.)  139;  McClure  v.  Briggs,  58  Vt.  82,  2  Atl.  583,  56  Am.  Rep.  557; 
HAWKINS  v.  GRAHAIM.  149  Mass.  284,  21  N.  E.  312,  14  Am.  St.  Rep.  422; 
Housding  v.  Solomon,  127  Mich.  654,  87  N.  W.  57. 

63  BROWN  V.  FOSTER,  113  Mass.  136,  18  Am.  Rep.  463. 

6  4  Gibson  v.  Cranage,  39  Mich.  49,  33  Am.  Rep.  351;  Zaleski  v.  Clark,  44 
Conn.  218,  26  Am.  Rep.  446;  Pennington  v.  Howland,  21  R.  I.  65,  41  Atl. 
891,  79  Am.  St.  Rep.  774. 

65  Haven  v.  Russell  (Sup.)  34  N.  Y.  Supp.  292;  Walker  v.  Edward  Thomp- 
son Co.,  37  App.  Div.  536,  56  N.  Y.  Supp.  326. 

06  Seeley  v.  Welles,  120  Pa.  69,  13  Atl.  736;  ADAMS  RADIATOR  & 
BOILER  WORKS  v.  SCHNADER,  155  Pa.  .S94,  26  Atl.  745,  35  Am.  St.  Rep. 

0  7  Silsby  Mfg.  Co.  v.  Town  of  Chieo  (C.  C.)  24  Fed.  893:  SINGERLY  v. 
THAYER,  108  Pa.  291,  2  Atl.  230,  56  Am.  Rep.  207;  Electric  Lighting  Co. 
of  Mobile  v.  Elder,  115  Ala.  138,  21  South.  983. 


§  233)  BY   PERFORMANCE.  433 

Other  hand,  the  parties  may  agree  that  the  satisfactoriness  may  be  de- 
teimined  by  the  mind  of  a  reasonable  man,  and  not  by  the  mere  taste 
or  Hking-  of  the  promisor;  "^  and  where  the  subject-matter  of  the  con- 
tract involves  such  considerations  as  salability,  operative  fitness,  and 
mechanical  utility,  rather  than  personal  feeling  or  taste,  many  courts 
construe  the  satisfaction  contemplated  as  that  of  a  reasonable  man.®" 
And  some  cases  even  lay  down  the  broad  rule  that  where  a  contract  is 
to  be  performed  to  the  satisfaction  of  one  of  the  parties,  the  meaning 
necessarily  is  that  it  must  be  done  to  the  satisfaction  of  the  mind  of 
a  reasonable  man.'^°  It  seems,  however,  that  the  question  in  each  case 
should  be  the  determination  of  the  intention  of  the  parties  as  evinced 
by  the  particular  contract,  and  that  no  invariable  rules  of  interpreta- 
tion can  be  laid  down.'^^ 

Time  of  Performance. 

Where  no  time  for  performance  is  fixed  by  the  contract,  a  reason- 
able time  is  implied.''^  Where  a  time  is  specified,  the  question  arises 
whether  it  is  of  the  essence  of  the  contract  or  not.  This  question 
must  be  answered  by  the  rules  of  construction  which  we  have  already 
considered.''^  If  time  is  of  the  essence,  a  performance  after  the  time 
fixed  does  not  bind  the  other  party  unless  he  waives  the  breach,  and 
thereby,  in  efifect,  makes  a  new  contract  taking  the  place  of  the  old 
one.     Where  a  particular  day  is  fixed  upon  for  performance,  or  per- 

893;  Silsby  Mfg.  Co.  v.  Town  of  Chico  (C.  C.)  24  Fed.  893;  Campbell  Printing- 
Press  Co.  v.  Thorp  (C.  C.)  36  Fed,  414,  1  L..  R.  A.  645;  Wood  Reaping  & 
Mowing  Mach.  Co.  v.  Smith,  50  Mich.  5G5,  15  N.  W.  906,  45  Am.  Rep.  57; 
McCormick  Harvesting  Mach.  Co.  v.  Chesrown,  33  Minn.  32,  21  N.  W.  846; 
Exhaust  Ventilator  Co.  v.  Railroad  Co.,  66  Wis.  218,  28  N.  W.  343,  57  Am.  Rep. 
257;  Blaine  v.  Publishers  George  Knapp  &  Co.,  140  Mo.  241,  41  S.  W.  787; 
Williams  Mfg.  Co.  v.  Brass  Co.,  173  Mass.  356,  53  N.  E.  862. 

6  8  HAWKINS  V.  GRAHAM,  149  Mass.  284,  21  N.  E.  312,  14  Am.  St.  Rep. 
422. 

6  9  Wood  Reaping  &  Mowing  Mach.  Co.  v.  Smith,  50  Mich.  565,  15  N.  W. 
906,  908,  45  Am.  Rep.  57:  Schliess  v.  City  of  Grand  Rapids  (Mich.)  90  N.  W. 
700.     And  see  DUPLEX  SAFETY  BOILER  CO.  v.  GARDEN,  101  N.  Y.  387, 

4  N.  E.  749,  54  Am.  Rep.  709. 

TO  Keeler  v.  Clifford,  105  111.  544,  46  N.  B.  248;  Richison  v.  Mead,  11  S. 
D.  639,  SO  N.  W.  13] .     And  see  DOLL  v.  NOBLE,  116  N.  Y.  230,  22  N.  E.  406, 

5  L.  R.  A.  554,  15  Am.  St.  Rep.  398. 

71  Wood  Reaping  &  Mowing  INIach.  Co.  v.  Smith,  50  Mich.  565,  15  N.  W. 
906,  45  Am.  Rep.  57;  HAWKINS  v.  GRAHAM,  149  Mass.  284,  21  N.  EL  312, 
14  Am.  St.  Rep.  422;  Magee  v.  Lumber  Co.,  78  IMinn.  11,  SO  N.  W.  781; 
Electric  Lighting  Co.  of  IMobile  v.  Elder,  115  Ala.  138.  21  South.  983;  McNeil 
V.  Armstrong,  81  Fed.  943,  27  C.  C.  A.  16;  City  of  Elizabeth  v.  Fitzgerald, 
114  Fed.  547,  52  C.  C.  A.  321. 

7  2  Ante,  p.  408.  Where  the  act  to  be  done  is  the  payment  of  money,  the 
presumption  is  that  it  is  to  be  paid  on  demand.  Warren  v.  Wheeler,  8  Mete 
QIass.)  07. 

7  3  Ante,  p.  408. 

Clark  Cont.  (2d  Ed.) — 28 


434  DISCHARGE  OF  CONTRACT.  (Ch.  11 

formance  is  required  within  a  certain  time,  the  contract  may  be  per- 
formed at  any  time  during  the  day  or  during  the  last  day.''* 

Bifect  of  Failure  of  Performance. 

If  there  is  a  failure  of  performance,  partial  or  total,  then  the  con- 
tract is  broken.  Whether  the  breach  amounts  to  a  discharge  is  a  ques- 
tion which  we  shall  hereafter  discuss. 


SAME— PAYMENT. 

234.   Payment  consists  in  the  performance  of  a  contract— 

(a)  By  the  delivery  of  money,  or 

(b)  By  the  delivery  of  negotiable  instruments   conferring  the  right 

to    receive    money,    in    \irhich    latter    case    the    payee    may    take 
the  instrument— 

(1)  In  discharge   of  his  right  absolutely,   or 

(2)  Subject  to  a  condition  (Tirhich,  in  most  jurisdictions,  ivill  be 

presumed,  in  the  absence  of  expressions  to  the  contrary) 
that,  if  not  paid  when  due,  the  payee  reverts  to  his  original 
rights,  either  to  performance  of  the  contract  or  satisfac- 
tion for  its  breach.^  6 

If  the  liability  of  a  party  to  a  contract  consists  in  the  payment  of 
a  sum  of  money  in  a  certain  way  or  at  a  certain  time,  such  a  payment 
discharges  him  by  the  performance  of  his  agreement.  If,  again,  a 
person  who  is  liable  to  perform  certain  acts  under  his  contract  wishes 
instead  to  pay  a  sum  of  money,  or,  having  to  pay  a  sum  of  money, 
wishes  to  pay  it  in  a  manner  at  variance  with  the  terms  of  the  con- 
tract, he  must  agree  with  the  other  party  to  accept  the  proposed  pay- 
ment in  lieu  of  such  performance  as  he  is  entitled  to  under  the  con- 
tract® In  such  a  case  the  payment  is  a  performance  of  the  substi- 
tuted agreement,  and  a  discharge  of  the  contract.  Again,  where  one 
of  two  parties  has  made  default  in  the  performance  of  his  part  of  the 
contract,  so  that  a  right  of  action  has  accrued  to  the  other,  the  obliga- 
tion formed  by  this  right  of  action  may  be  discharged  by  an  accord  and 
satisfaction;  that  is,  an  agreement,  the  consideration  for  which  is 
usually  a  money  payment,  made  by  the  party  against  whom  the  right 
exists,  and  accepted  in  discharge  of  his  right  by  the  other. '^^  Payment, 
then,  is  the  performance  of  a  contract,  whether  it  be  a  performance  of 
an  original  or  of  a  substituted  contract,  or  of  a  contract  in  which  pay- 
ment is  the  consideration  for  a  forbearance  to  exercise  a  right  of  ac- 
tion which  may  have  arisen  from  the  breach  of  an  agreement. 

If  counterfeit  coins,  bank  notes,  or  other  moneys  are  given  in  per- 
formance of  a  promise  to  pay  money,  even  though  they  are  believed 

1*  Leake,  Cont.  441 ;  Startup  v.  Macdonald,  6  Man.  &  G.  593. 

7  5  Anson,  Cont  (4tb  Ed.)  272-274.         ^e  Ante,  p.  420.        "  Post,  p.  491. 


§  234)  BY    PERFOUMAXCE.  435 

to  be  good,  there  is  no  payment.  The  promisee  may  treat  it  as  a 
nullity.'®  Where,  for  the  purpose  of  making  a  payment,  money  is 
sent  by  the  debtor  to  the  creditor  by  mail,  and  is  lost  before  it  reaches 
him,  it  will  discharge  the  debt,  and  the  loss  will  fall  on  the  creditor, 
if  the  remittance  was  in  the  manner  authorized  by  him,  but  not  other- 
wise.'^* 

Payment  by  Negotiable  or  Nonnegotiable  Instrument. 

A  negotiable  instrument  may  be  given  for  a  sum  due,  either  h'quidated 
or  unliquidated.  It  is  in  effect  a  substitution  of  a  new  agreement  for  the 
old  one,  but  it  does  not  necessarily  discharge  the  old  agreement.  Where 
such  a  payment  is  made,  either  in  performance  of  an  existing  contract 
or  in  satisfaction  of  a  broken  contract,  it  may  discharge  the  party  mak- 
ing it,  either  absolutely  or  conditionally.  Whether  it  has  the  one  or 
the  other  of  these  effects  depends  upon  the  intention  of  the  parties.®" 
If  the  instrument  is  accepted  by  the  party  entitled  to  payment,  and  in 
consideration  thereof  he  promises,  either  expressly  or  impliedly,  to  dis- 
charge the  other  party  altogether  from  his  existing  liabilities,  the  dis- 
charge of  the  original  contract  is  absolute.  The  payee  reUes  then  up- 
on the  rights  conferred  by  the  instrument,  and,  if  it  is  not  paid,  he 
must  sue  on  it.     He  cannot  sue  on  the  original  contract.®^     On  the  oth- 

78  Markle  v.  Hatfield,  2  Johns.  (N.  Y.)  455,  3  Am.  Dee.  446;  Young  v.  Adams, 
6  Mass.  182;  Gilman  v.  Peck,  11  Vt.  516,  34  Am.  Dec.  702;  Blalock  v.  Pbillips. 
38  Ga.  216;  U.  S.  v.  Morgan,  11  How.  154,  13  L.  Ed.  043;  First  Nat.  Bank 
V.  Buchanan,  87  Tenn.  32,  9  S.  W.  202,  1  L.  R.  A.  199,  10  Am.  St.  Rep.  617. 
He  may  be  estopped,  however,  if  he  was  guilty  of  negligence  in  receiving  the 
counterfeit,  or  if,  after  discovery,  he  delays  for  an  unreasonable  time  to  re- 
tm-n  it  or  notify  the  debtor.  Thomas  v.  Todd,  6  Hill  (N.  Y.)  340;  Pindall's 
Ex'rs  V.  Bank,  7  Leigh  (Va.)  617;  Rick  v.  Kelly,  30  Pa.  527;  Wingate  v. 
Neidlinger,  50  Ind.  520 ;  Union  Nat.  Bank  v.  Baldenwick,  45  111.  375 ;  Atwood 
V,  Cornwall,  28  Mich.  336,  15  Am.  Rep.  219. 

78  Palmer  v.  Insurance  Co.,  84  N.  Y.  63;  Gurney  v.  Howe,  9  Gray  (Mass.) 
404,  69  Am.  Dec.  299;  Buell  v.  Chapin,  99  Mass.  594,  97  Am.  Dec.  58;  Kenyon 
v.  Association,  122  N.  Y.  247,  25  N.  E.  299;  Burr  v.  Sickles,  17  Ark.  428,  65 
Am.  Dec.  437;  Williams  v.  Carpenter,  36  Ala.  9,  76  Am.  Dec.  316;  Gross  v. 
Criss,  3  Grat  (Va.)  262. 

so  Cheltenham  Stone  &  Gravel  Co.  v.  Iron  Works,  124  111.  623,  16  N.  B. 
923;  Flanagin  v.  Hambleton,  54  Md.  222;  Combination  Steel  &  Iron  Co.  v. 
[Railway  Co.,  47  Minn.  207,  49  N.  W.  744;  Kirkpatrick  v.  Puryear,  93  Tenn. 
409,  24  S.  W.  1130,  22  L.  R.  A,  785;  National  Park  Bank  v.  Levy,  17  R.  I. 
740,  24  Atl.  777,  19  L.  R.  A.  475;  Case  Mfg.  Co.  v.  Soxman,  138  U.  S.  431, 
11  Sup.  Ct.  360,  34  L.  Ed.  1019;  Craddock  v.  Dwight,  85  Mich.  587,  48  N.  W. 
644;   Bank  of  Monroe  v.  Gifford,  79  Iowa,  300,  44  N.  W.  558;'  note  82,  Infra. 

81  Sard  V.  Rhodes,  1  Mees.  &  W.  153;  Wolf  v.  Fink,  1  Pa.  4.35,  44  Am.  Dec. 
141;  Ralston  v.  Wood,  i5  111.  159,  58  Am.  Dec.  604;  Bausman  v.  Guarantee 
Co.,  47  Minn.  377,  50  N.  W.  490;  Kirkpatrick  v.  Puryear,  93  Tenn.  409,  24 
S.  W.  1130,  22  L.  R.  A.  7S5;  Susquehanna  Fertilizer  Co.  v.  White,  66  Md. 
444,  7  Atl.  802,  59  Am.  Rep.  186;  Costar  v.  Davies,  8  Ark.  213,  46  Am.  Dec. 
311. 


436  DISCHARGE  OF  CONTRACT.  (Oil.  11 

er  hand,  the  instrument  may  be  taken  as  a  conditional  discharge  only ; 
and  in  England  and  in  most  of  our  states  it  is  presumed  to  have  been 
so  taken  unless  there  is  something  to  show  a  contrary  intention.^^  In 
such  a  case  the  position  of  the  parties  is  that  the  payee,  having  certain 
rights  against  the  other  party  under  a  contract,  has  agreed  to  take 
the  instrument  from  him  instead  of  immediate  payment  of  what  is  due 
him,  or  immediate  enforcement  of  his  right  of  action,  and  the  other 
party,  in  giving  the  instrument,  has  thus  far  satisfied  the  payee's  claim ; 
but,  if  the  instrument  is  not  paid  at  maturity,  the  consideration  for 
the  payee's  promise  fails,  and  his  original  rights  are  restored  to  him. 
The  eft'ect  of  receiving  a  negotiable  instrument  conditionally  is  merely 
to  suspend  the  right  to  sue  on  the  original  contract  until  the  instru- 
ment matures,  and  when  it  matures,  and  is  not  paid,  to  give  the  right 
to  sue  either  on  it  or  on  the  original  contract.^ ^  The  agreement  is  de- 
feasible upon  condition  subsequent;  that  is,  upon  nonpayment  of  the 
instrument  when  due. 

Payment,  then,  consists  in  the  performance  either  of  an  original  or 
substituted  contract  by  the  delivery  of  money,  or  of  negotiable  instru- 
ments conferring  the  right  to  receive  money;  and  in  this  last  event 
the  payee  may  have  taken  the  instrument  in  discharge  of  his  right  ab- 
solutely, or  subject  to  a  condition  (which  will  be  presumed,  in  the  ab- 
sence of  expressions  to  the  contrary)  that,  if  payment  be  not  made 

62  Sayer  v.  Wagstaff,  5  Beav.  423;  Robinson  v.  Read,  9  Bam.  &  C.  449; 
Feldman  v.  Beier,  78  N.  Y.  293-;  Tbe  Kimball,  3  Wall.  37,  18  L.  Ed.  50;  Bill 
V.  Porter,  9  Conn.  23;  Stewart  Paper  Mfg.  Co.  v.  Ran,  92  Ga.  511,  17  S.  E. 
748;  Morriss  v.  Han^eys,  75  Va.  726;  Say  re  v.  King,  17  W.  Va.  562;  Shep- 
herd V.  Busch,  154  Pa.  149,  26  Atl.  363,  35  Am.  St.  Rep.  815;  Sebastian  May 
Co.  V.  Codd,  77  Md.  293.  26  Atl.  316;  Akin  T.  Peters,  45  Ark.  313;  Belleville 
Sav.  Bank  v.  Boruman,  124  111.  200,  16  N.  E.  210;  Case  v.  Seass,  44  Mich. 
195,  6  N.  W.  227 ;  Fii-st  Nat.  Bank  v.  Case,  63  Wis.  504,  22  N.  W.  833.  But 
the  presumption  is  reversed  where  the  note  of  a  third  person  is  given  with- 
out guaranty  or  indorsement,  on  account  of  a  contemporaneous  debt.  Whit- 
beck  V.  Van  Ness,  11  Johns,  (N.  Y.)  409,  6  Am.  Dec.  383 ;  Noel  v.  Murray,  13 
N.  Y.  167;  Deford  v,  Dryden.  46  Md.  248;  Bicknall  v.  Waterman,  5  R.  I.  43. 
And  see  FORD  v.  MITCHELL^  15  Wis.  304.  But  see  Devlin  v.  Chamblin, 
6  Minn.  468  (Gil.  325) ;  Mclntyre  v.  Kennedy,  29  Pa.  448.  In  Massachusetts 
and  several  other  states  the  presumption  is  that  the  instrument  was  intended 
to  be  accepted  as  an  absolute  discharge.  Dodge  v.  Emerson,  131  Mass.  467; 
Melian  v.  Thompson,  71  Me.  492;  Mason  v.  Douglas,  6  Ind.  App.  558,  33  N. 
E.  1009;  Smith  v.  Bettger,  68  Ind.  254,  34  Am.  Rep.  256;  Teal  v.  Spangler, 
72  Ind.  380;  Nixon  v.  Beard,  111  Ind.  137,  12  N.  E.  131;  Hadley  v.  Bordo, 
02  Vt.  285,  19  Atl.  476.  These  various  presumptions  may  be  rebutted  by  evi- 
dence of  a  different  intention.    Norton,  Bills  &  N.  (3d  Ed.)  19. 

8  3  Sayer  v.  Wagstaff,  5  Beav.  423;  Happy  v.  Mosher,  48  N.  Y.  313;  HaU 
V.  Richardson,  16  JNId.  396,  77  Am.  Dec.  303;  Lupton  v.  Freeman,  82  Mich. 
638,  40  N.  W.  1042;  ^Morrison  v.  Smith,  81  111.  221;  Fry  v.  Patterson,  49  N. 
.7.  Law,  6,  12,  10  Atl.  390;  Hays  v.  McClurg,  4  Watts  (Pa.)  452;  Barnet  v. 
Smith,  30  N.  H.  256,  64  Am.  Dec.  200.  See,  also,  the  cases  cited  in  note  82, 
supra. 


§  234)  BY    PEKFOKMAXCE.  437 

when  the  instrument  falls  dvie,  the  parties  revert  to  their  original 
rights,  whether  those  rights  are,  so  far  as  the  payee  is  concerned,  rights 
to  the  performance  of  a  contract,  or  rights  to  satisfaction  for  the  breach 
of  one.^* 

Application  of  Payments. 

Where  a  person  owes  several  debts  to  another,  or  owes  on  an  ac- 
count consisting  of  several  different  items,  and  makes  a  part  payment, 
the  question  arises  as  to  which  debt  is  discharged.  As  a  rule,  the 
debtor  has  a  right  to  say  which  debt  he  will  pay,  and  he  may  show 
his  intention  in  this  respect  by  his  conduct,  or  it  may  otherwise  be  in- 
ferred from  the  circumstances.^^  If  the  creditor  receives  the  payment, 
he  is  bound  to  apply  it  as  expressly  or  impliedly  directed.®' 

If  the  debtor  does  not  direct  the  application,  at  the  time  of  the  pay- 
ment,^ ^  the  creditor,  as  a  rule,  may  apply  it  as  he  may  see  fit.®*  He  may 
apply  it,  for  instance,  to  a  debt  which  is  barred  by  the  statute  of  limita- 

84  Robinson  v.  Read,  9  Barn.  &  C.  449;  Saj^er  v.  Wagstaff,  5  Beav.  41.5. 

85  stone  V.  Seymour,  15  Wend.  (N.  Y.)  19;  Seymour  v.  Van  Slyck,  8  Wend. 
(N.  Y.)  403;  Tayloe  v.  Sandiford,  7  Wheat.  13,  5  L.  Ed.  3S4;  Fowke  v.  Bowie, 
4  Har.  &  J.  (Md.)  566;  Hansen  v,  Rounsavell,  74  111.  238;  Stewart  v.  Keith, 
12  Pa.  238;    Sawyer  v.  Tappan,  14  N.  H.  352. 

8  6  Patty  V.  Milne,  16  Wend.  (N.  Y.)  557;  Miln  v.  Patty,  22  Wend.  (N.  Y.) 
558;  Ellis  v.  Mason,  32  S.  C.  277,  10  S.  E.  1069;  Washington  Natural  Gas 
Co.  V.  Johnson.  123  Pa.  576,  16  Atl.  799,  10  Am.  St.  Rep.  553;  Atkinson  v. 
Cox,  54  Ark.  444,  16  S.  W^  124 ;  Stewart  v.  Hopkins,  30  Ohio  St.  502  ;  Wetherell 
V.  Jay,  40  Me.  325;  Champenois  v.  Fort,  45  Miss.  355;  Runyan  v.  Latham, 
27  N.  C.  551.     Cf.  Flarsheim  v.  Brestup,  43  Minn.  298,  45  N.  W.  438. 

87  Pearce  v.  Walker,  103  Ala.  250,  15  South.  568. 

88  Mayor,  etc.,  of  Alexandria  v.  Patten,  4  Cranch,  317,  2  L,  Ed.  033;  Hard- 
ing V.  Tiff  t,  75  N.  Y.  461 ;  First  Nat.  Bank  v.  Johnson,  65  Vt.  382,  26  Atl.  634 ; 
Whitaker  v.  Groover,  54  Ga.  174 ;  Jones  v.  Williams,  39  Wis.  300 ;  Case  v.  Fant, 
3  C.  C.  A.  418,  53  Fed.  41 ;  Henry  Bill  Pub.  Co.  v.  Utley,  155  Mass.  360,  29  N,  E. 
635;  Lee  v.  Early,  44  Md.  SO;  Senter  r.  Williams  (Ark.)  17  S.  W.  1029;  Beck  v. 
Haas,  111  Mo.  2l>±,  20  S.  W.  19,  33  Am.  St.  Rep.  516;  Howard  v.  McCall,  21 
Grat.  (Va.)  205;  Perot  v.  Cooper,  17  Colo.  80,  28  Pac.  391,  31  Am.  St.  Rep. 
258;  Jefferson  v.  Church  of  St.  Matthew,  41  Minn.  392,  43  N.  W.  74;  Byi'nes 
V.  Claffey,  69  Cal.  120,  10  Pac.  321;  Koch  v.  Roth,  150  111.  212,  37  N.  E.  317. 
The  creditor  cannot,  without  the  debtor's  consent,  apply  the  payment  to  an 
illegal  claim.  Phillips  v.  Moses,  65  Me.  70;  Pickett  v.  Bank,  32  Ark.  346; 
McCausland  v.  Ralston.  12  Nev.  195,  28  Am.  Rep.  781;  Caldwell  v.  Went- 
worth,  14  N.  H.  431;  Bancroft  v.  Dumas,  21  Vt.  456;  Rohan  v.  Hanson,  11 
Cush.  (Mass.)  44;  Kidder  v.  Norris,  18  N.  H.  532;  unless  the  debtor  consents. 
Brown  v.  Burns,  67  Me.  535;  Feldman  t.  Gamble,  26  N.  J.  Eq.  494.  But  he 
may  apply  it  to  a  debt  which  is  merely  unenforceable,  and  not  illegal.  Haynes 
V.  Nice,  100  Mass.  327,  1  Am.  Rep.  109;  Ayer  v.  Hawkins,  19  Vt.  26;  Murphy 
V.  Webber,  61  Me.  478.  He  cannot  apply  it  to  a  debt  not  yet  due.  Heard  v. 
Pulaski,  80  Ala.  502,  2  South.  343;  Bobe's  Heirs  v.  Stickney,  36  Ala.  482. 
The  application  must  be  made  Avithin  a  reasonable  time,  or  it  will  be  ap- 
plied by  law.     Harker  v.  Conrad,  12  Serg.  ^V:;  R.  (i'a.)  301,  14  Am.  Dec.  691. 


438  DISCHARGE   OP   CONTRACT.  (Cb.  11 

tions,  in  preference  to  another  which  is  not  barred.'®  Having  once 
made  the  appHcation,  he  cannot  change  it  without  the  debtor's  con- 
sent."" 

If  neither  party  makes  an  appropriation  of  the  payment,  the  law 
will  apply  it.  According  to  the  civil  law,  the  presumable  intention  of 
the  debtor  was  resorted  to  as  the  rule  to  determine  the  application, 
and,  in  the  absence  of  express  declaration  by  either  party,  the  payment 
was  applied  in  the  way  that  would  be  most  beneficial  to  the  debtor. 
"The  payment  was  consequently  applied  to  the  most  burdensome  debt, 
— to  one  that  carried  interest,  rather  than  to  that  which  carried  none ; 
to  one  secured  by  a  penalty,  rather  than  to  that  which  rested  on  a  sim- 
ple stipulation;  and,  if  the  debts  were  equal,  then  to  that  which  had 
been  first  contracted."  "^  This  rule  has  been  adopted  in  a  number  of 
cases  both  in  England  and  in  this  country.  In  a  well-considered  New- 
York  case  the  rule  was  approved  after  a  full  review  of  the  authorities, 
and  a  payment  was  applied  to  a  mortgage  and  a  judgment  debt  in 
preference  to  an  account,  because  the  former  would  bear  most  heavily 
on  the  debtor.^ 2  Many  of  the  courts,  on  the  other  hand,  have  adopted 
a  rule  to  some  extent  directly  opposed  to  the  civil-law  rule.  "If  the 
application  is  made  by  neither  party,"  it  has  been  said  by  the  supreme 
court  of  the  United  States,  "it  becomes  the  duty  of  the  court,  and  in 
its  exercise  a  sound  discretion  is  to  be  exercised.  It  cannot  be  conced- 
ed that  this  application  is  to  be  made  in  a  manner  most  advantageous 
to  the  debtor.  *  *  *  j^  would  seem  reasonable  that  an  equitable 
application  should  be  made ;  and,  it  being  equitable  that  the  whole  debt 
should  be  paid,  it  cannot  be  inequitable  to  extinguish  first  those  debts 
for  which  the  security  is  most  precarious."  In  this  case  the  payment 
was  applied  to  other  demands  rather  than  to  a  judgment  debt,  on 
the  ground   that  the  former  were   not  so  well  secured.^^     Probably 

88  Jackson  v.  Burke,  1  Dill.  311,  Fed.  Cas.  No.  7,133;  Ayer  v.  Hawkins,  19 
Vt.  26;  Williams  v.  Griffith,  5  Mees.  &  W.  300;  Waugli  v.  Cope,  6  Mees.  & 
W.  824;  Murphy  v.  Webber,  61  Me.  478;  Pond  v.  AVilliams,  1  Gray  (Mass.) 
630;  Ramsay  v.  Warner,  97  Mass.  8;  Beck  v.  Haas,  31  Mo.  App.  180.  But 
see  Id.,  Ill  Mo.  264,  20  S.  W.  19,  33  Am.  St.  Rep.  516. 

80  Offutt  V.  King,  1  McArthnr  (D.  C.)  312;  Pearce  v.  Walker,  103  Ala.  250. 
15  South.  568;  Cremer  v.  Higginson,  1  Mason,  337,  Fed.  Cas.  No.  3,383;  Mc- 
Master  v.  Merrick,  41  Mich.  505,  2  N.  W.  895.  Nor  can  the  creditor  be  com- 
pelled to  change  the  application.  JelTerson  v.  Chm-ch  of  St.  Matthew,  41 
Minn.  392,  43  N.  W.  74 ;    Seymour  v.  Marvin,  11  Barb.  (N.  Y.)  80. 

91  Devaynes  v.  Noble  (Clayton's  Case),  1  Mer.  572,  606. 

92  Pattison  v.  Hull,  9  Cow.  747;  Bacon  v.  Brown,  1  Bibb  (Ky.)  334,  4  Am. 
Dec.  623;  Jones  v.  Benedict,  83  N.  Y.  79;  Hey  ward  v.  Lomax,  1  Vem.  24; 
Prowse  V.  Worthinge,  2  Brown  &  G.  107;  Neal  v.  Allison,  50  Miss.  175; 
Gwinn  v.  Whitaker's  Adm'x,  1  Har.  &  J.  (Md.)  754;  Dorsey  v.  Gassaway.  2 
Har.  &  J.  (Md.)  402;  Perot  v.  Cooper,  17  Colo.  80,  28  Pac.  391,  31  Am.  St. 
Rep.  2.58;   Robinson  v.  Doolittle,  12  Vt.  246;   Moore  v.  Kiff,  78  Pa.  96. 

93  Field  V.  Holland,  0  Cranch,  27,  3  L.  Ed..  136.     And  see  Bm-ks  v.  Albei-t, 


§  234)  BY  PERFORMANCE.  439 

most  of  the  courts  in  tliis  country  follow  the  rule  just  stated,  though 
with  some  qualification.  It  is  very  generally  said  that  an  equitable  ap- 
plication will  be  made ;  that  is,  that  the  payment  will  be  applied  accord- 
ing to  the  justice  of  the  particular  case,  in  view  of  all  the  circumstan- 
ces.®* Such  a  rule  is  not  very  dcfmite.  Is  it  more  equitable  to  give 
effect  to  the  civil-law  rule,  and  apply  the  payment  as  would  be  most 
beneficial  to  the  debtor,  or  to  follow  the  opposite  rule,  and  consider 
the  creditor's  interests?  The  Minnesota  court,  in  stating  the  rule,  has 
thus  qualified  it:  "It  is  true  that,  where  the  parties  have  not  made 
any  specific  application  of  payments,  courts  will  make  it  according  to 
the  justice  and  equity  of  the  case;  but  in  doing  so  they  are  governed 
by  certain  general  and  established  rules,  and  are  not  at  liberty  to  adopt 
their  own  notions  of  what  may  be  just  and  equitable  in  each  particular 
case."  ®'  One  of  these  rules  is  that,  where  there  is  but  one  continuous 
account  of  several  items,  "the  payments  will  be  applied  on  the  account 
according  to  the  priority  of  time, — that  is,  the  first  item  on  the  debit 
side  is  discharged  or  reduced  by  the  first  item  on  the  credit  side;"  and 
so,  where  there  are  several  debts  of  equal  dignity,  a  payment  will  gen- 
erally be  applied  to  the  oldest.®^  As  we  have  seen,  when  we  get  be- 
yond this,  there  is  a  conflict  of  opinion.®^ 

4  J.  J.  Marsh.  (Ky.)  97,  20  Am.  Dec.  209;  Gardner  v.  Leek,  52  Minn.  522. 
54  N.  W.  746;  Leeds  v.  Gifford,  41  N.  J.  Eq.  464,  5  Atl.  795;  The  D.  B.  Steel- 
man  (D.  C.)  48  Fed.  580;  Stamford  Bank  v.  Benedict,  15  Conn.  437;  Hilton 
V.  Burley,  2  N.  H.  193.  In  a  latei*  case,  under  the  same  rule  (the  rule  of 
equitable  application),  the  payments  were  so  applied  as  to  operate  bene- 
licially  to  the  sureties  of  the  debtor,  and  against  the  creditor.  United  States 
V.  Kirkpatrick,  9  Wheat.  737,  6  L.  Ed.  199. 

94  Smith  V.  Loyd,  11  Leigh  (Va.)  512,  37  Am.  Dec.  621;  Stone  v.  Seymour, 
15  Wend.  (N.  Y.)  19;  White  v.  Trumbull,  15  N.  J.  Law,  314,  29  Am.  Dec. 
687;  Allen  v.  Culver,  3  Denio  (N.  Y.)  284;  Pierce  v.  Knight,  31  Vt  Tol ; 
Crompton  v.  Pratt,  105  Mass.  255. 

05  Hersey  v.  Bennett,  28  Minn.  86,  9  N.  W.  590.  41  Am.  Rep.  271.  And  see 
Miller  v.  Miller,  23  Me.  22,  39  Am.  Dec.  597;  Bobe's  Heu-s  v.  Stickney,  36 
Ala.  482. 

8  6  Devaynes  v.  Noble  (Clayton's  Case),  1  Mer.  572;  Hersey  v.  Bennett,  28 
Minn.  8<j,  9  N.  W.  590.  41  Am.  Rep.  271;  Miller  v.  Miller,  23  Me.  22,  39  Am. 
Dec.  597;  Parks  v.  Ingram,  22  N.  H.  283,  55  Am.  Dec.  153;  Pierce  v.  Knight, 
31  Vt.  701;  Crompton  v.  Pratt,  105  ISIass.  255;  Smith  v.  Loyd,  11  Leigh  (Va.) 
512,  37  Am.  Dec.  021;  Hill  v.  Bobbins,  22  Mich.  474;  Winnebago  Mills  v. 
'n-avis  (Minn.)  58  N.  W.  36;  Gushing  v.  Wyman,  44  Me.  121;  Fairchild  v. 
Holly,  10  Conn.  175;  Truscott  v.  King,  6  N.  Y.  147;  Jones  v.  United  States,  7 
How.  6Sa,  12  L.  Ed.  870;  United  States  v.  Kirkpati-ick,  9  Wheat.  720,  6  L. 
Ed.  199;  Emery  v.  Tichout,  13  Vt.  15;  Frazer  v.  Miller,  7  Wash.  521,  35  Pac. 
427;  Stiernberger  v.  Gowdy,  93  Ky.  146,  19  S.  W.  186;  Sprague  v.  Hazen- 
winkle,  53  111.  419. 

0  7  Payment  will  be  applied  in  extinguishment  of  a  certain,  rather  than  a 
contingent,  liability.  President,  etc.,  of  Niagara  Bank  v.  Rosevelt,  9  Cow. 
(X.  Y.)  409;  President,  etc.,  of  Bank  of  Portland  v.  Brown,  22  Me.  295;  and 
to   extinguish  an  existing  debt,   rather  than  a  debt  not  yet  due,   Baker  v. 


140  DISCHARGE   OF   CONTUACT.  (Cb.  11 


SAME— TENDER. 

235.   Tender  is  an  offer  or  attempt  to  perform,  and  may  be  either— 

(a)  An  offer  to  do  sometliing  promised,  in  ivliich  case  the  offer,  and 

its  refusal  by  the  promisee,  discharge  the  promisor  from  the 
contract. 

(b)  An  offer  to  pay  something  promised,  in  -which  case  the  offer,  and 

its  refusal  by  the  promisee,  do  not  discharge  the  debt,  but  pre- 
vent the  promisee  from  recovering  more  than  the  amount  ten- 
dered, and  in  an  action  by  the  promisee  entitle  the  prom- 
isor to  recover  the  costs  of  his  defense. ss 

"Tender"  is  an  attempted  performance.  The  word  is  applied  to  per- 
formance of  two  kinds :  (i)  To  performance  of  a  promise  to  do  some- 
thing; and  (2)  to  performance  of  a  promise  to  pay  something, — and 
the  effect  of  the  attempt  at  performance  in  the  two  cases  is  different. 
In  both  cases  the  performance  is  frustrated  by  the  act  of  the  party  for 
whom  it  is  to  take  place. 

Where,  in  a  contract  for  the  sale  of  goods,  the  vendor  satisfies  all 
the  requirements  of  the  contract  as  to  delivery,  and  the  purchaser  nev- 
ertheless refuses  to  accept  the  goods,  the  vendor  is  discharged  by  such 
a  tender  of  performance,  and  may  either  maintain  or  defend  suc- 
cessfully an  action  for  the  breach  of  the  contract.''®  Where,  how- 
ever, the  performance  due  consists  in  the  payment  of  a  sum  of  money, 
a  tender  by  the  debtor,  although  it  may  constitute  a  good  defense  to 
an  action  by  the  creditor,  does  not  discharge  the  debt.^*"'  If  the  cred- 
itor will  not  take  the  money  when  it  is  due  and  is  tendered  him,  he 
puts  himself  at  a  disadvantage  if  he  should  attempt  to  recover  it  by 
action,  but  the  debt  is  not  discharged.  The  debtor,  to  defend  success- 
fully by  pleading  the  tender,  must  continue  always  ready  and  willing 
to  pay  the  debt,  or,  as  it  is  said,  the  tender  must  be  kept  good ;  and 
when  he  is  sued,  and  pleads  the  tender,  he  must,  in  most  jurisdictions, 
pay  the  money  into  court.^°^  If  the  plea  is  sustained,  the  creditor  gets 
nothing  but  what  was  originally  tendered  him,  and  the  debtor  gets 

Stackpoole,  9  Cow.  (N.  Y.)  420,  18  Am.  Dec.  508 ;  Kline  v.  Ragland,  47  Ark.  Ill, 
14  S.  W.  474;  Heard  v.  Pulaski,  SO  Ala.  502,  2  South.  343;  Bobe's  Heirs  v. 
Stickney,  36  Ala.  482. 

08  Anson,  Cent.  (4tli  Ed.)  274,  275. 

»9  Still-tup  V.  Macdonald,  G  Man.  &  G.  593;  Benj.  Sales.  503;  Laml)  v. 
Lathrop,  13  Wend.  (N.  Y.)  95,  27  Am.  Dec.  174;  Phelps  v.  Hubbard,  51  Vt 
4S9;  Oelrichs  v.  Artz,  21  Md.  524;  Berry  v.  Nail,  54  Ala.  44G;  Mitchell  v. 
Merrill,  2  Blackf.  (Ind.)  87,  18  Am.  Dec.  128. 

100  Dixon  V.  Clarke,  5  C  B.  370. 

101  Dixon  V.  Clarke,  5  C.  B.  370;  Aulger  v.  Clay,  109  111.  487;  Illinois  v. 
Railroad  Co.  (C.  C.)  33  Fed.  730 ;  Rice  v.  Kahn,  70  Wis.  323,  35  N.  W.  405 ; 
Becker  v.  Boon,  01  N.  Y.  317;  Taylor  v.  Railroad  Co..  Ill)  X.  Y.  5()1.  23  X.  E. 
HOG ;   Columbian  Bldg.  Ass'n  of  East  Baltimore  No.  4  v.  Crump,  42  Md.  192 ; 


§  235)  BY    PERFORMANCE.  441 

judgment  for  his  costs,  so  that  he  is  placed,  as  nearly  as  can  be,  in  as 
good  a  position  as  he  held  at  the  time  of  the  tender.^ "^ 

Tender,  to  be  a  valid  performance  to  this  extent,  must  observe  ex- 
actly any  special  terms  which  the  contract  may  contain  as  to  time, 
place,  and  mode  of  payment.^"'  Further  than  this,  the  tender  must  be 
an  offer  of  money  produced,  or  at  least  made  accessible  to  the  creditor, 
and  not  of  a  check,  for  instance.  The  debtor  must  have  it  with  him ; 
but  its  actual  production  may  be  waived  by  the  creditor,  not  only  ex- 
pressly, but  impliedly,  as  where,  before  it  is  produced,  he  declares  that 
he  will  not  receive  it.^°*  It  need  not  necessarily  be  of  the  exact  sum, 
but  it  must  be  of  such  a  sum  that  the  creditor  can  take  exactly  what  is 
due  without  being  called  upon  to  give  change.^*'^  The  tender  must  be 
made  by  the  person  whose  duty  it  is  to  pay,  or  by  his  agent,  and  nOt 
by  a  mere  stranger  or  intermeddler ;  ^°®  and  it  must  be  made  to  the 
party  entitled  to  receive  payment,  or  to  his  duly-authorized  agent;  ^*^^ 

Bissell  V.  Heyward.  90  U.  S.  580,  24  L.  Ed.  678;  Roberts  v.  White,  146  :\Iass. 
250,  15  N.  E.  508;  Commercial  Fire  Ins.  Co.  v.  Allen,  80  Ala.  571,  1  South. 
202. 

102  Cornell  v.  Green,  10  Serg.  &  R.  (Pa.)  14. 

103  Noyes  v.  Wyckoff,  114  N.  Y.  204,  21  N.  E.  158;  Abshire  v.  Corey,  113 
Ind.  484,  15  N.  E.  685;  People's  Sav.  Bank  v.  Borough  of  Norwalk,  56  Conn. 
547,  16  Atl.  257;  Tiilou  v.  Britton,  9  N.  J.  Law,  120;  Hubbard  v.  Bank,  8 
Cow.  (N.  Y.)  88. 

104  Hazard  v.  Loring,  10  Cush.  (Mass.)  207;  Hall  v.  Insurance  Co.,  57 
Conn.  105,  17  Atl.  350;  Parker  v.  Pettit,  43  N.  J.  Law,  512;  Collier  v.  White, 
67  INIiss.  133,  6  South.  618;  Mathis  v.  Thomas,  101  Ind.  119;  KNIGHT  v. 
ABBOTT,  30  Vt  577 ;  Pinney  v.  Jorgenson,  27  ]Minn.  26,  6  N.  W.  376 ;  Larsen 
V.  Breene,  12  Colo.  480,  21  Pac.  498;  Guthman  v.  Keam,  8  Neb.  502,  1  N.  W. 
129;  Behaly  v.  Hatch,  1  Miss.  369,  12  Am.  Rep.  570;  Oakland  Bank  of  Sav- 
ings V.  Applegarth,  67  Cal.  86,  7  Pac.  139,  476;  Dungan  v.  Insurance  Co.,  46 
Md.  469.  Tender  by  check  may  be  sufficient  where  no  objection  is  made 
on  this  ground.  McGrath  v.  Gegner,  77  Md.  331,  26  Atl.  502,  39  Am.  St.  Rep. 
415.  And  see  Walsh  v.  Association,  101  Mo.  534,  14  S.  W.  722;  Cradle  v. 
Warner,  140  111.  123,  29  N.  E.  1118. 

105  Betterbee  v.  Davis,  3  Camp.  70;  Robinson  v.  Cook,  6  Taunt.  336;  Fridge 
V.  State,  3  Gill  &  J.  (Md.)  103,  20  Am.  Dec.  403;  Weld  v.  Bank,  158  Mass. 
339,  33  N.  E.  519;  Brandt  v.  Railroad  Co.,  26  Iowa,  114;  Patnote  v.  Sanders, 
41  Vt.  6(5,  98  Am.  Dec.  564;   Patterson  v.  Cox,  25  Ind.  261. 

106  Sinclair  v.  Learned,  51  Mich.  335,  16  N.  W.  672;  Kincaid  v.  School 
Dist,  11  Me.  188;  Brown  v.  Dysinger,  1  Rawle  (Pa.)  408;  Mahler  v.  New- 
baur,  32  Cal.  168,  91  Am.  Dec.  571;  McDougald  v.  Dougherty,  11  Ga.  570; 
Johnson  v.  Smock,  1  N.  J.  Law,  106. 

107  Carman  v.  Pultz,  21  N.  Y.  547;  Wilson  v.  Doran,  110  N.  Y.  101,  17  N.  E. 
688;  Oatman  v.  Walker,  33  Me.  67;  King  v.  Finch,  00  Ind.  420;  Mclniffe  v. 
Wheelock,  1  Gray  (Mass.)  600;  Conrad  v.  Trustees  of  Grand  Grove,  04  Wis. 
258,  25  N.  W.  24;  Billiot  v.  Robinson,  13  La.  Ann.  529;  Hoyt  v.  Byrnes,  11 
Me.  475;  Cropp  v.  Hambleton,  Cro.  Eliz.  48;  Carman  v.  Pultz,  supra.  Tender 
to  one  of  several  joint  creditoi's  suflicieut.  Oatman  v.  Walker,  supra;  Daw- 
son V.  Ewiug,  10  Serg.  &  R.  (Pa.)  371;  Flanlgan  v.  Seelye,  53  Mmn.  23,  55  N. 
W.  115. 


^ 


442  DISCHARGE   OF   CONTRACT.  (Ch.  11 

and  it  must  be  understood  as  a  tender,  and  be  absolute  and  uncondi- 
tional.^"^ It  has  also  been  held  that  the  tender  must  be  made  at  a  rea- 
sonably fit  time  and  place.^°® 

So,  also,  where  goods  are  tendered  in  compliance  with  a  contract  of 
sale,  the  tender  must  comply  with  all  the  terms  of  the  contract.  An 
offer  to  deliver  a  greater  or  a  less  quantity  than  the  contract  calls  for, 
is  not  a  valid  tender.^ ^°  It  is  also  necessary  that  the  buyer  shall  be 
given  an  opportunity  to  examine  them  if  he  chooses,  so  that  he  may 
satisfy  himself  that  they  comply  with  the  terms  of  the  contract ;  other- 
wise, he  does  not  break  the  contract  by  refusing  to  accept  them."^ 

108  Hunter  v.  Warner,  1  Wis.  141;  Potts  v.  Plaisted.  30  Mich.  149-,  Tomp- 
kins V.  Batie,  11  Neb.  147,  7  N.  W.  747,  38  Am.  Rep.  361;  Noyes  v.  Wyckoff, 
114  N.  Y.  204,  21  N.  E.  158;  Pulsifer  v.  Sliepard,  30  111.  513;  Odum  v.  Railroad 
Co.,  94  Ala.  488,  10  South.  222;  Brooklyn  Bunk  v.  De  Grauw,  23  Wend.  (N.  Y.) 
342,  35  Am.  Dec.  5G9 ;  Appeals  of  Forest  Oil  Co.,  118  Pa.  138,  12  Atl.  442,  4 
Am.  St.  Rep.  584;  Rives  v.  Dudley,  56  N.  C.  126,  67  Am.  Dec.  231;  Henderson 
V.  Cass  Co.,  107  Mo.  50,  18  S.  W.  992;  Cothran  v.  Scanlan,  34  Ga.  555;  Rose 
V.  Duncan,  49  Ind.  269.  Where  the  amount  is  disputed,  an  offer  of  less 
than  the  creditor  claims,  on  condition  that  it  be  accepted  in  discharge  of  the 
debt,  is  not  a  valid  tender,  thougli  no  more  than  offered  be  due.  Thomas  v. 
Evans.  10  East,  101;  Wood  v.  Hitchcock,  20  Wend.  (N.  Y.)  47;  Thayer  v. 
Brackett,  12  Mass.  450;  Richardson  v.  Laboratory,  9  Mete.  (Mass.)  42;  Chapin 
v.  Cliapin  (Mass.)  36  N.  E.  746;  Elderkin  v.  Fellows,  60  Wis.  339,  19  N.  W. 
101;  Draper  v.  Hitt,  43  Vt.  439,  5  Am.  Rep.  292;  Moore  v.  Norman,  52  Minn. 
83,  53  N.  W.  809,  18  L.  R.  A.  359,  38  Am.  St.  Rep.  520;  Doty  v.  Crawford,  39 
S.  C.  1,  17  S.  E.  377;  Latham  v.  Hartford.  27  Kan.  249;  Commercial  Fire 
Ins.  Co.  v.  Allen,  80  Ala.  571,  1  South.  202.  Tender  under  protest,  reserving 
right  to  dispute  amount  due,  is  good,  if  it  does  not  impose  conditions  on  cred- 
itor. Greenwood  v.  Sutcliffe  [1892]  1  Ch.  1.  Tender  of  amount  due  on  a 
mortgage  is  not  rendered  invalid  by  fact  that  it  is  accompanied  by  condition 
that  the  mortgage  be  satisfied,  since  the  condition  is  one  which  the  mort- 
gagee, on  being  paid,  is  bound  to  perform.  Halpin  v.  Insurance  Co.,  118  N. 
Y.  165,  23  N.  E.  482.  Contra,  Loring  v.  Cooke,  3  Pick.  (Mass.)  48;  Lindsay 
v.  Matthews,  17  Fla.  575.  See  Jones,  Mortg.  §  900.  Tender  to  pledgee  of 
amount  secured  is  not  vitiated  by  condition  that  pledge  be  delivered.  Lough- 
borough V.  McNevin,  74  Cal.  250,  14  Pac.  369,  15  Pac.  773,  5  Am.  St.  Rep. 
435. 

109  Waldron  v.  Murphy,  40  Mich.  668. 

3  10  Dixon  V.  Fletcher,  3  Mees.  &  W.  146;  Hart  v.  MiUs,  15  Mees.  &  W.  85; 
Curliffe  v.  Harrison,  6  Exch.  903;  Perry  v.  Iron  Co.,  16  R.  I.  318,  15  Atl.  87; 
Rommel  v.  Wiugate,  103  Mass.  327;  Croninger  v.  Crocker,  62  N.  Y.  151;  Tif- 
fany, Sales,  187. 

Ill  Isherwood  v.  Whitmore,  10  Mees.  &  W.  757;  Wyman  v.  Winslow,  11 
Me.  398,  26  Am.  Dec.  542;  Holmes  v.  Gregg,  66  N.  H.  621,  28  Atl.  17;  Tittany, 
Sales,  197. 


}§  236-238)  BY  BREACH.  443 


DISCHARGE  OF  CONTRACT  BY  BREACH— IN  GENERAL. 

236.  Breach  of  contract  Is  xv^here  a  party  thereto  breaks  through  the 

obligation  'which  it  imposes. 

237.  The  effect  of  a  breach  of  contract  is  that— 

(a)  It  always  gives  the  party  injured  a  right  of  action. 

(b)  It  often,  but  not  always,  discharges  the  contract.      This  depends 

upon  circumstances  to  be  presently  discussed. 

If  one  of  the  parties  to  a  contract  breaks  through  the  obligation 
which  it  imposes,  a  new  obligation  arises  in  every  case, — a  right  of  ac- 
tion conferred  upon  the  party  injured  by  the  breach.  Besides  this, 
there  are  circumstances  under  which  the  breach  will  discharge  the  in- 
jured party  from  such  performance  as  may  still  be  due  from  him. 
Every  breach  of  contract  confers  the  right  of  action  upon  the  injured 
party,  but  every  breach  does  not  necessarily  discharge  him  from  doing 
what  he  has  undertaken  to  do  under  the  contract.  The  contract  may 
be  broken  wholly  or  in  part,  and,  if  in  part,  the  breach  may  or  may 
not  be  sufficiently  important  to  operate  as  a  discharge;  or,  if  it  is  of 
such  importance,  the  injured  party  may  choose  not  to  regard  it  as  a 
discharge,  preferring  to  continue  to  carry  out  the  contract,  reserving 
to  himself  the  right  to  sue  for  such  damages  as  he  may  have  sustained 
by  the  breach.  It  is  often  very  difficult  to  determine  whether  or  not 
a  breach  of  one  of  the  terms  of  a  contract  discharges  the  party  in- 
jured.^^-     These  questions  will  be  discussed  in  the  following  pages.         Lerd.^  - 

FORMS   OF  DISCHARGE  BY  BREACH. 

238.  A  contract  may  be  broken  in  any  one  of  three  ways: 

(a)  A  party  may  renounce  his  liabilities  under  it. 

(b)  He  may  by  his  ow^n  act  make  it  impossible  for  him  to  fulfill  his 

liabilities  under  it. 
<c)    He   may  totally  or  partially  fail  to  perform  what  he  has  prom- 
ised. 

Of  these  three  forms  of  breach,  the  first  two  may  take  place  while 
the  contract  is  still  wholly  executory ;  that  is,  before  either  party  is  en- 
titled to  demand  a  performance  by  the  other  of  his  promise.  The 
last  can  only  take  place  at  or  during  the  time  for  performance.^^^ 

112  Anson,   Cont.   (4th  Ed.)  27G. 

113  Anson,   Cont.   (4th  Ed.)  '2S0. 


444  DISCHARGE  OF  CONTRACT.  (Ch.  11 


SAME— RENUNCIATION  OF  CONTRACT. 

23^  Rennnciation  of  a  contract  by  one  of  the  parties  before  the 
time  for  performance  discharges  the  other  party  if  he  so 
chooses,  but  not  otherw^ise,  and  entitles  him  to  sue  at  once  for 
the  breach.114 

240.  Renunciation  of  a  contract  by  one  of  the  parties  in  the  course  of 
performance  discharges  the  other  party  from  a  continued  per- 
formance of  his  promise,  and  entitles  him  to  sue  at  once  for 
the  breach.116 

Before  Performance  is  Due. 

The  parties  to  a  contract  which  is  wholly  executory  have  a  right  to 
something  more  than  a  performance  of  the  contract  when  the  time  for 
performance  arrives.  They  have  a  right  to  the  maintenance  of  the 
contractual  relation  up  to  that  time,  as  well  as  to  a  performance  of  the 
contract  when  due.  It  is  therefore  settled,  by  the  great  weight  of  au- 
thority, that  the  renunciation  ^^^  of  a  contract  by  one  of  the  parties 
before  the  time  for  performance  has  come  does  not  discharge  the  other 
unless  the  latter  chooses  to  regard  it  as  a  discharge.^^'^  If  he  chooses, 
he  may  so  regard  it,  and  at  once  sue  for  the  breach.^ ^*  The  discharge 
is  optional  with  him.  In  a  leading  case  on  this  point  the  defendant 
had  engaged  the  plaintiff  to  enter  into  his  service,  the  employment  to 
commence  at  a  future  day,  but  before  that  time  arrived  he  wrote  the 
plaintiff  that  he  should  not  require  his  services.     The  plaintiff  at  once 

114  Anson,  Cont.  (4th  Ed.)  280-283. 

115  Anson,  Cont.  (4th  Ed.)  2t^,  285. 

118  There  must  be  a  positive  and  luiqualilied  renunciation,  and  not  a  mere 
expression  of  intention  not  to  perform.  DINGLEY  v.  OLER,  117  U.  S.  490, 
6  Sup.  Ct.  SoO,  29  L.  Ed.  984;  Vittum  v.  Estey,  67  Vt.  158,  31  Ati.  144. 

117  FROST  V.  KNIGHT,  L.  R.  7  Exch.  Ill;  Averj^  v.  Bowden,  5  El.  & 
Bl.  714;  Howard  v.  Daly.  Gl  N.  Y.  3G2,  19  Am.  Rep.  285;  Nilson  v.  Morse, 
52  Wis.  240,  9  N.  W.  1;  KADISH  v.  YOUNG,  108  111.  170,  43  Am.  Rep.  548; 
ZUCK  V.  McCLURE,  98  Pa.  541. 

lis  HOCHSTER  v.  DE  LA  TOUR,  2  El.  &  Bl.  678;  FROST  v.  KNIGHT, 
L.  R.  7  Exch.  Ill ;  Roper  v.  Johnson,  L.  R.  8  C.  P.  1G7 ;  ROEHM  v.  HORST, 
178  U.  S.  1,  20  Sup.  Ct.  780,  44  L.  Ed.  953;  BURTIS  v.  THOMPSON,  42  N. 
Y.  24G,  1  Am.  Rop.  516;  Fox  v.  Kitton.  19  111.  519;  Crabtree  v.  Messersmith, 
19  Io^Ya,  179;  Hosmer  v.  Wilson,  7  Mich.  294.  74  Am.  Dec.  71G:  Chapman  v. 
J.  W.  Beltz  &  Sons  Co.,  48  W.  Va.  1,  35  S.  E.  1013;  Trammell  v.  Vaughan, 
15S  Mo.  214,  59  S.  W.  79,  51  L.  R.  A.  854,  81  Am.  St.  Rep.  302;  Mutual  Re- 
serve Fmid  Life  Ass'n  v.  Taylor,  99  Va.  208,  37  S.  E.  854.  So.  also,  in  ex- 
ecutory contracts  of  sale,  if,  before  the  time  arrives,  the  purchaser  repudiates 
the  contract,  the  seller  need  not  tender  the  goods,  but  may  sue  at  once  for  the 
breach.  Roper  v.  Johnson,  supra ;  Eckenrode  v.  Chemical  Co.,  55  Md.  51 ; 
WINDMULLER  V.  POPE,  107  N.  Y.  G74,  14  N.  E.  43G ;  Bunge  v.  Koop,  48 
N.  Y.  225,  8  Am.  Rep.  54G;  James  v.  Adams,  16  W.  Va.  245;  McCormick 
V.  Basal,  ir,  Iowa,  2:^5;  ZUCK  v.  :McCLURF^  98  Pa.  541:  K.IDISH  v.  YOUNG, 
108  111.  170,  43  Am.  Rep.  518;   Piatt  v.  Brand,  26  Mich.  173. 


§§  239-240)  BY  BREACH.  445 

sued  for  the  breach  of  contract,  though  the  time  for  performance  had 
not  arrived,  and  the  court  held  that  he  was  entitled  to  do  so.  It  was 
said  by  the  court  that,  "where  there  is  a  contract  to  do  an  act  on  a 
future  day,  there  is  a  relation  constituted  between  the  parties  in  the 
meantime  by  the  contract,  and  *  *  *  they  impliedly  promise  that 
in  the  meantime  neither  will  do  anything  to  the  prejudice  of  the  other 
inconsistent  with  that  relation."  ^^*  And  in  another  case  the  defendant 
had  agreed  to  marry  the  plaintiff  upon  his  father's  death,  but  renounced 
the  contract,  and  the  plaintiff  was  allowed  to  sue  for  the  breach  during 
the  father's  lifetime.  "The  promisee,"  it  was  said,  "has  an  inchoate 
right  to  the  performance  of  the  bargain,  which  becomes  complete  when 
the  time  for  performance  has  arrived.  In  the  meantime  he  has  a  right 
to  have  the  contract  kept  open  as  a  subsisting  and  effective  contract. 
Its  unimpaired  and  unimpeached  efficacy  may  be  essential  to  his  in- 
terests." i'« 

The  case  just  mentioned  is  authority  for  the  statement  that  the 
operation  of  the  rule  is  not  aft'ected  by  the  fact  that  the  performance  is 
contingent,  for  in  this  case  the  father  may  have  outlived  the  plaintiff 
or  the  defendant,  in  which  case  the  time  for  performance  never  could 
arrive. 

The  rule  laid  down  above  is  subject  to  limitations :  ^^^ 
(i)  The  renunciation  must  deal  with  so  much  of  the  performance 
to  which  the  contract  binds  the  promisor  that  an  actual  breach  at  the 
time  of  performance  would  operate  as  a  discharge.  This  point  was 
mentioned  in  a  case  in  which  a  tenant  claimed  damages  of  his  landlord 
for  breach  of  contract  by  repudiation  of  a  covenant  to  rebuild  the  prem- 
ises at  a  period  of  the  tenancy  which  had  not  yet  arrived.  "The  con- 
tract," it  was  said,  "was  the  whole  lease.  The  covenant  in  question 
is  a  particular  covenant  in  the  lease  not  going  to  the  whole  considera- 
tion. If  there  were  an  actual  breach  of  such  a  covenant  at  the  time 
fixed  for  performance,  such  breach  would  not,  according  to  the  au- 
thorities, entitle  the  tenant  to  throw  up  his  lease.  That  being  so,  I 
do  not  hesitate  to  say — though  it  is  not  necessary  in  this  case  to  decide 
the  point — that  an  anticipatory  breach  would  not  entitle  him  to  do  so, 

118  HOCHSTER  V.  DB  LA  TOUR,  2  El.  &  Bl.  678. 

120  FROST  V.  KNIGHT,  L.  R.  7  Exeh.  111. 

121  It  seems  that  if  tlie  obligation  is  merely  to  pay  money,  renunciation  be- 
fore payment  falls  due  cannot  have  the  effect  of  an  anticipatory  breach.  See 
BURTIS  V.  THOMPSON,  42  N.  Y.  240,  1  Am.  Rep.  516:  Nichols  v.  Steel  Co., 
137  N.  Y.  471,  33  N.  E.  561,  566;  Flinn  v.  Mowry,  131  Cal.  481,  63  Pac.  724; 
Benecke  v.  Haebler,  38  App.  Div.  344,  58  N.  Y.  Supp.  16,  affirmed  166  N.  Y. 
(531.  60  N.  E.  1107.  And  it  has  been  held  that  repudiation  by  the  defendant 
after  full  performance  by  the  plaintiff  confers  no  right  of  action  as  for  an 
anticipatory  breach,  on  the  gi-ound  that  the  defendant  might  elect  to  perform. 
Pittman  v.  Pittman  (Ky.)  61  S.  W.  461. 


446  DISCHARGE   OP   CONTRACT.  (Ch.  11 

and  that  it  does  not  appear  to  me  that  he  could  elect  to  rescind  part  of 
the  contract."  ^-^ 

(2)  The  promisee  must  treat  the  renunciation  by  the  promisor  as  a  dis- 
charge. If  he  does  not  so  treat  the  renunciation,  but  continues  to  in- 
sist on  the  performance  of  the  promise,  the  contract  remains  in  ex- 
istence for  the  benefit,  and  at  the  risk,  of  both  parties.^-^  If  anything 
occur,  for  instance,  to  discharge  it  from  other  causes,  the  promisor 
may  take  advantage  of  such  discharge.  A  vessel  owner  agreed  with 
a  person,  by  charter  party,  that  his  ship  should  go  to  Odessa,  and  there 
take  on  a  cargo  from  such  person's  agent.  The  vessel  reached  Odessa, 
and  her  master  demanded  a  cargo,  but  the  agent  refused  to  supply 
one.  The  master,  instead  of  treating  this  refusal  as  a  breach  of  con- 
tract, and  sailing  away,  in  which  event  the  vessel  owner  could  have 
sued  at  once  for  breach  of  contract,  continued  to  demand  a  cargo, 
and,  before  the  running  days  were  out, — l^efore,  therefore,  a  breach 
by  nonperformance  had  occurred, — a  war  broke  out,  rendering  per- 
formance of  the  contract  legally  impossible.  Afterwards,  the  owner 
sued  for  breach  of  the  charter  party,  but  it  was  held  that  as  there  had 
been  no  actual  failure  of  performance  before  the  war  broke  out  (for 
the  running  days  had  not  then  expired),  and  as  the  renunciation  of 
the  contract  had  not  been  accepted  as  a  breach,  the  charterer  was 
entitled  to  the  discharge  of  the  contract,  which  took  place  upon  the 
declaration  of  war.^^* 

Though  the  rule  as  stated  above  is  almost  universally  recogmzed, 
the  Massachusetts  court  has  held  that  a  renunciation  before  the  time 
for  performance  has  arrived  does  not  amount  to  a  breach :  that,  to 
render  a  person  liable  "for  breach  of  an  executory  personal  contract, 
the  other  party  must  show  a  refusal  or  neglect  to  perform  at  a  time 

122  JOHNSTONE  V.  MILLING,  16  Q.  B.  Div.  400.  And  see  Obermyer  v. 
Nichols,  6  Bin.  (Pa.)  159,  6  Am.  Dec.  439. 

123  See  cases  cited  supra,  note  117.  Where  the  other  party  had  not  elected 
to  treat  a  repudiation  as  a  breach,  held  that  he  was  not  excused  for  subse- 
quent nonperformance.  Smith  v.  Banking  Co.,  113  Ga.  975,  39  S.  E.  410. 
Where  one  party  renounces,  the  other  is  not  bound  to  sue  for  a  breach  before 
the  day  fixed  for  performance  arrives,  and  to  have  his  damages  assessed  as 
of  the  date  of  the  renunciation.  KADISH  v.  YOUNG,  108  111.  170,  43  Am. 
Rep.  548;  Koebling's  Sons'  Co.  v.  P>nce  Co.,  130  111.  660.  22  N.  E.  518.  Cf. 
Davis  v.  Bronson,  2  N.  D.  300,  50  N.  W.  836,  16  L.  K.  A.  655.  33  Am.  St.  Rep. 
783.  But  a  plaintiff  may  not  after  repudiation  by  the  defendant  go  on  with 
performance,  and  thereby  increase  his  damages  by  a  useless  performance. 
CLARK  V.  MAKSIGLIA,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670;  LORD  v. 
THOMAS,  64  N.  Y.  107;  GIBBONS  v.  BENTE,  51  Minn.  499,  53  N.  W. 
756.  22  L.  R.  A.  80;  COLLYER  v.  MOULTON,  9  R.  I.  90.  98  Am.  Dec.  370; 
Heaver  v.  Lanahan,  74  Md.  493.  22  Atl.  263:  Chicago  Bldg.  &  ]\Ifg.  Oo. 
V.  Barry  (Tenn.  Ch.  App.)  52  S.  W.  451;  Peck  &  Co.  v.  Coriiigating  Co.,  96 
Mo.  App.  212,  70  S.  W.  169. 

124  Avery  v.  Bowden,  5  El.  &  Bl.  714. 


§§  239-240)  BY   BREACH.  447 

when,  and  under  conditions  such  that,  he  is  or  might  be  entitled  to 
require  performance."  ^^'* 

In  the  Course  of  Performance. 

It  may  also  happen  that,  in  the  course  of  performance  of  a  contract, 
one  of  the  parties  may,  by  word  or  act,  deliberately  and  avowedly 
refuse  performance  on  his  part.  In  such  a  case  the  other  party  is 
exonerated  from  a  continued  performance  of  his  promise,  and  is  at 
once  entitled  to  bring  action.^-"  Illustrations  of  such  a  discharge  are 
furnished  by  those  cases  in  which  a  person  contracts  for  the  manufac- 
ture and  supply  of  goods  to  be  delivered  in  certain  quantities  at  speci- 
fied dates,  and,  after  delivery  of  a  part,  the  buyer  notifies  the  seller  not 
to  deliver  any  more.  In  such  a  case,  in  an  action  by  the  sellers,  in 
which  they  averred  readiness  and  willingness  to  deliver  the  rest  of  the 
goods,  and  that  they  had  been  prevented  from  doing  so  by  the  buyer, 
it  was  contended  by  the  buyer  that  they  should  show,  not  merely 
readiness  and  willingness  to  deliver,  but  actual  delivery.  The  court, 
however,  held  the  contrary,  and  stated  the  principle  thus:  "When 
there  is  an  executory  contract  for  the  manufacturing  and  supply  of 
goods  from  time  to  time,  to  be  paid  for  after  delivery,  if  the  purchaser, 
having  accepted  and  paid  for  a  portion  of  the  goods  contracted  for, 
gives  notice  to  the  vendor  not  to  manufacture  any  more  as  he  has 
no  occasion  for  them  and  will  not  accept  or  pay  for  them,  the  vendor 
having  been  desirous  and  able  to  complete  the  contract,  he  may,  with- 
out manufacturing  and  tendering  the  rest  of  the  goods,  maintain  an 
action  against  the  purchaser  for  breach  of  contract;  and  *  *  * 
he  is  entitled  to  a  verdict  on  pleas  traversing  allegations  that  he  was 
ready  and  willing  to  perform  the  contract,  that  the  defendant  refused 
to  accept  the  residue  of  the  goods,  and  that  he  prevented  and  dis- 
charged the  plaintiff  from  manufacturing  and  delivering  them."  ^^^ 

128  DANIELS  V.  NEWTON,  114  Mass.  530,  19  Am.  Rep.  384.  And  see  Stan- 
ford V.  McGill,  6  N.  D.  530,  72  N.  W.  93S,  38  L.  R.  A.  7G0.  Cf.  Lewis  v. 
Tapman,  90  Md.  294,  45  Atl.  459,  47  L.  R.  A.  385. 

12  6CORT  V.  RAILWAY  CO.,  17  Q.  B.  127;  Textor  v.  Hutchings,  62  Md. 
150;  Hosmer  v.  Wilson,  7  Mich.  293,  74  Am.  Dec.  710;  DERBY  v,  JOHNSON, 
21  Vt.  17;  James  v.  Adams,  16  W.  Va.  245;  Clement  &  Hawkes  Mfg.  Co.  v. 
Meserole,  107  Mass.  302;  PARKER  v.  RUSSELL,  133  Mass.  74;  Haines  v. 
Tucker,  50  N.  H.  311 ;  McCormick  v.  Basal,  40  Iowa,  235 ;  Smith  v.  Lewis,  24 
Conn.  624,  03  Am.  Dec.  180  ;  Amsden  v.  Atwood,  68  Vt  322,  35  Atl.  311 ;  North 
V.  Mallory,  94  Md.  305,  51  Atl.  89. 

127  CORT  V.  RAILWAY  CO.,  17  Q.  B.  127. 


448  DISCUARGE   OF  CONTRACT.  (Ch.  11 


SAME— IMPOSSIBILITY  CHEATED  BY  PARTY. 

241.  If  a  party  to  a  contract,  eitier  before  the  time  for  performance 
or  in  tlie  course  of  performance,  makes  performance,  or  fur- 
ther performance,  by  him  impossible,  the  other  party  is  dis- 
charged, and  may  sue  at  once  for  breach  of  contract. 

If  before  the  time  for  performance  has  arrived  one  of  the  parties, 
by  his  own  act,  makes  it  impossible  to  perform,  the  other  is  discharged, 
and  may  sue  at  once  for  a  breach,  as  in  case  of  renunciation.^-^ 
Where  a  lessee,  for  instance,  had  promised  to  assign  to  another,  at 
any  time  within  seven  years  from  the  date  of  the  promise,  all  his 
interest  in  the  lease,  but  before  expiration  of  the  seven  years  assigned 
his  whole  interest  to  another  person,  it  was  held  that  he  could  be 
sued  at  once  for  breach  of  contract.  "The  plaintiff,"  it  was  said  in 
that  case,  "has  a  right  to  say  to  the  defendant:  'You  have  placed 
yourself  in  a  situation  in  which  you  cannot  perform  what  you  have 
promised.  You  promised  to  be  ready  during  the  period  of  seven 
years,  and  during  that  period  I  may  at  any  time  tender  you  the  money 
and  call  for  an  assignment,  and  expect  that  you  should  keep  yourself 
ready;  but,  if  I  now  were  to  tender  you  the  money,  you  would  not 
be  ready.'  That  is  a  breach  of  the  contract."  ^^®  The  rule  applies 
where  a  person  promises  to  execute  a  lease  for  a  certain  term,  or  a 
conveyance,  and,  before  the  time  for  executing  arrives,  executes  a 
conveyance,  or  a  lease  covering  that  term,  to  another;  ^^°  or  where 
a  person  promises  to  sell  specific  goods  on  a  certain  day,  and,  before 
that  day,  sells  them  to  another;  ^^^  or  where  a  person  promises  to 
marry,  and,  before  the  time  for  performance  arrives,  marries  another 
than  the  promisee.^^^ 

The  rule  is  the  same  where  a  party  to  a  contract,  by  his  voluntary 
act,  in  the  course  of  performance,  makes  performance  by  him  impos- 

128  Lovelock  V.  Franklyn,  8  Q.  B.  371;  Ford  v.  Tiley,  6  Barn.  &  C.  325; 
BowcTell  V.  Parsons,  10  East,  359;  Crabtree  v.  Messersmith,  19  Iowa,  179; 
WOLF  V.  MARSH,  54  Cal.  228;  Loveriug  v.  Lovering,  13  N.  H.  513;  New- 
comb  V.  Brackett,  16  Mass.  161;  DELAMATER  v.  MILLER,  1  Cow,  (N.  T.) 
75,  13  Am.  Dec.  512;   Bolles  v.  Sacbs,  37  Minn.  315,  33  N.  W.  862. 

120  Lovelock  v.  Franklyn,  8  Q.  B.  371. 

130  Ford  V.  Tiley,  6  Barn.  &  O.  325;  Synge  v.  Synge  (1894)  1  Q.  B.  466; 
Nowcomb  V.  Brackett,  16  Mass.  161;  Bassett  v.  Bassett,  55  Me.  127.  Contra, 
Webb  V.  Stephenson,  11  Wash.  342,  39  Pac,  952;  Garberino  v.  Roberts,  109 
Cal.  125,  41  Pac.  857. 

181  Bowdell  V.  Parsons,  10  East,  359;  Hawley  v.  Keeler,  53  N.  Y.  114;  Smith 
V.  Jordan.  13  Minn.  264  (Gil.  246),  97  Am.  Dec.  232;  Crist  v.  Armour,  34  Barb. 
(N.  Y.)  378;    Easlon  v.  .Tones,  193  Pa.  147,  44  Atl.  264. 

132  SHORT  V.  STONE,  8  Q.  B.  358;  King  v.  Kersey,  2  Ind.  402;  Sheahan  v. 
Barr?',  27  ^Nlich.  217;  Brown  v.  Odill,  104  Tenn.  250,  56  S.  W.  SiO,  52  L.  R. 
A.  660,  78  Am.  St.  Rep.  914. 


§  242)  Br  BREACH.  449 

sible."^  An  illustration  is  afforded  in  a  case  in  which  the  plaintiff 
had  been  engaged  by  the  defendants,  for  a  certain  sum,  to  write  a 
treatise  for  a  serial  published  by  them.  The  plaintiff  incurred  ex- 
pense in  preparing  his  work,  and  actually  completed  a  part  of  it,  but 
before  it  was  delivered  to  the  defendants  they  abandoned  the  publi- 
cation of  the  serial.  The  plaintiff  sued  them  on  the  special  contract, 
and  also  on  the  quantum  meruit  for  the  work  and  labor  expended  b> 
him  on  the  treatise.  It  was  argued  that  he  could  not  recover  upon 
the  quantum  meruit  because,  his  part  of  the  original  contract  being 
unperformed,  the  contract  was  not  wholly  at  an  end ;  but  the  court 
held  that  the  abandonment  of  the  publication  put  an  end  to  the  con- 
tract, and  constituted  a  discharge.^^* 


BREACH  BY  FAILURE  OF  PERFORMANCE. 

242.  Whether  or  not  failure  of  one  party  to  perform  the  contract  in 
•whole  or  in  part  operates  as  a  discharge  of  the  other,  or  mere- 
ly gives  him  a  right  of  action  for  the  breach,  depends  upon  the 
nature  of  the  respective  promises,  or,  in  other  ivords,  on  the 
question   •whether   they   are^ 

(a)  Independent  of  each  other,  in  xirhich  case,  as  a  rule,  there  is  no 

discharge. 

(b)  Conditional  upon  each  other,  in  ivhich  case,  as  a  rule,  there  is  a 

discharge. 

In  the  cases  of  discharge  by  breach  v/ith  which  we  have  thus  far 
dealt,  the  party  at  fault  so  deals  with  the  contract,  by  word  or  act. 
as  to  intimate  to  the  other  party  that  performance,  or  further  per- 
formance, as  the  case  may  be,  on  his  part,  is  needless.  In  such  cases, 
as  we  have  seen,  the  courts  hold  that  the  party  not  in  default  is  not 
bound  to  tender  performance,  but  may  consider  the  contractual  tie 
broken,  and  sue  at  once  for  the  other's  breach.  These  cases  are  verv 
clear  and  simple ;  but  where  the  breach  by  one  party  does  not  make 
the   contract   wholly    incapable   of    performance,    and    is    not   accom- 

133  O'Neill  V.  Armstrong  [1895]  2  Q.  B.  70;  Woolner  v.  Hill,  93  N.  Y.  576; 
Ix)VGll  V.  Insurance  Co.,  Ill  U.  S.  2G4,  4  Sup.  Gt.  39€,  28  K  Ed.  423;  Chicago 
V.  Tilley,  103  U.  S.  146,  26  L.  Ed.  371;  HINCKLEY  v.  STEEL  CO.,  121  U. 
S.  264,  7  Sup.  Ct  875,  30  L.  Ed.  967 ;  Western  Union  Telegi-aph  Co.  v.  Semmes, 
73  Md.  9,  20  Atl.  127. 

13  4  PL.iNCn£  V.  COLBURN,  8  Bing.  14.  So,  also,  where  a  person  had 
lieen  employed  by  a  corporation  for  a  number  of  years,  and  the  company  was 
Toluntarily  wound  up  before  tbe  time  had  expired,  so  tiiat  further  performance 
by  it  was  rendered  impossible,  the  employ^  was  permitted  to  sue  at  once  for 
the  breach  of  contract.  Ex  parte  Maohire,  L.  R.  5  Ch.  App.  737.  And  see 
Seipel  V.  Trust  Co.,  84  Pa.  47;  UNITED  STATES  v.  BEHAN,  110  U.  S. 
338,  4  Sup.  Ct.  28,  28  L.  Ed.  168;  Newhall  Engineering  Co.  v.  Daly,  116  Wis. 
256,  93  N.  W.  12. 

Clark  Cont.  (2d  Ed.)— 29 


450  DISCHARGE    OF   CONTRACT.  (Ch.  11 

panied  by  any  overt  expression  of  intention  to  abandon  his  rights, 
it  is  not  always  easy  to  determine  whether  the  other  party  is  thereby 
discharged,  or  whether  he  merely  acquires  a  right  of  action  for  the 
breach.  It  is  necessary  in  these  cases  to  look  to  the  terms  of  the  con- 
tract, and  ascertain  the  intention  of  the  parties  as  to  the  nature  of 
their  respective  promises.  The  difficulties  resolve  themselves  into  the 
question  whether  the  promises  of  the  parties  are  independent  of,  or 
conditional  upon,  one  another,^^'^  This  question  must  be  discussed 
at  some  length;  but  it  may  be  well  to  state  at  the  outset  that,  as  a 
general  rule,  failure  of  a  party  to  perform  his  promise  does  not  dis- 
charge the  other  from  liability  to  perform  his,  if  the  promises  are  inde- 
pendent of  each  other ;  but  that  it  is,  as  a  rule,  otherwise,  if  the  prom- 
ises are  conditional  upon  one  another. 


SAME— INDEPENDENT  PROMISES. 

243.  Failure   of  one   of  the  parties  to  a  contract  to  perform   an  in- 

dependent promise  does  not  discharge  the  other  party  from  lia- 
bility to  perform,  bnt  merely  gives  him  a  right  of  action  for 
the  breach. 

244.  A  promise  may  be  independent  in  the  following  ways: 

(a)  It  may  be  absolute, — that  is,  Ttrholly  unconditional  upon  perform- 

ance by  the  other  party;  but  promises,  each  of  Tvhich  forms 
the  Tehole  consideration  for  the  other,  -will  not  be  held  in- 
dependent of  one  another,  unless  the  intention  of  the  parties 
to  make  them  independent  is  clear. 

(b)  It  may  be   divisible, — that  is,  the  promise  may  be  susceptible  of 

more  or  less  complete  performance,  and  the  damage  sus- 
tained by  an  incomplete  performance  or  partial  breach  may 
be  apportioned  according  to  the  extent  of  the  failure. 

(c)  It  may  be  subsidiary, — that  is,  the  promise  broken  may  be  a  term 

of  the  contract  tvhich  the  parties  have  not  regarded  as  vital 
to  its  existence. 

Absolute  Promises. 

If  a  person  makes  a  promise  to  another  in  consideration  of  a  promise 
by  the  latter  to  him,  and  has  not  in  express  terms,  or  upon  a  reason- 
able construction  of  the  contract,  made  the  performance  of  his  promise 
depend  upon  performance  by  the  other  party,  he  is  not  discharged 
by  the  latter's  breach  of  his  promise.^^^     He  has  given  his  promise  in 

135  Anson,  Cont.  (4th  Ed.)  286. 

136  THOKPE  V.  THORPE,  12  Mod.  45-5;  THOMAS  v.  CADWALLADER, 
Willes,  496;  WARE  v.  CHAPPELL,  Style,  186;  Dey  v.  Dox,  9  Wend.  (N.  Y.) 
129,  24  Am.  Dec.  137;  Long  v.  Caffrey.  93  Pa.  526;  Hard  v.  Seeley,  47  Barb. 
(N.  Y.)  428;  Barnett  v.  Franklin  College,  10  Ind.  App.  103.  37  N.  E.  427; 
Kauffmaii  v.  Kaeder,  108  Fed.  171,  47  C.  C.  A.  278,  54  L.  R.  A.  247;  and  cases 
hereafter  cited. 


§§  243-244)  BY   BREACH.  451 

consideration  of  the  promise  of  the  other  party,  and  not  in  consider- 
ation of  performance  by  the  latter  of  his  promise.  In  other  words, 
he  has  accepted  the  latter's  HabiHty  in  return  for  his  own  promise. 

When  it  has  once  been  determined  that  mutual  promises  are  abso- 
lute and  independent  of  each  other,  there  can  be  little  difficulty  in 
applying  the  law ;  but  it  is  often  very  difficult  to  decide  as  to  the  char- 
acter of  a  promise  in  this  respect,  and  this  difficulty  has  resulted  in 
much  conflict  between  the  cases.  The  old  cases  turned  upon  a  very 
technical  construction  of  terms, ^^'^  but  the  modern  cases  show  that 
the  tendency  of  the  courts  is  not  to  construe  promises  to  be  absolute 
and  independent  of  one  another,  where  they  form  the  whole  consid- 
eration for  one  another,  unless  there  is  some  very  definite  expression 
of  an  intention  of  the  parties  to  that  effect.^^^  "Whether  covenants 
be  or  be  not  independent  of  each  other  must  depend  on  the  good  sense 
of  the  case,  and  on  the  order  in  which  the  several  things  are  to  be 
done."  ^^®  The  order  in  which  the  things  are  to  be  done  is  a  very  sure 
test  for  determining  whether  promises  are  absolute  or  not.^*°  "When 
it  appears  that  one  of  two  covenants  or  promises  is  to  be  performed 

137  Rolle,  Abr.  p.  518;  WAKE  v.  CHAPFELL,  Style,  186,  and  see  GLAZE- 
BROOK  V.  WOODROW,  8  Term  R.  366.  In  15  Hen.  VII.  p.  10,  pi.  17,  for  in- 
stance, it  was  held  that  if  A.  covenant  with  B.  to  serve  him  for  a  year,  and 
B.  covenant  with  A.  to  give  him  a  certain  sum  of  money,  and  does  not  say 
"for  the  cause  aforesaid,"  A.  shall  have  an  action  for  the  money,  though  he 
never  serves  B.,  hut  that  it  is  otherwise  if  B.  says  that  A.  shall  have  the 
money  "for  the  cause  aforesaid."  See  2  Pars.  Cont.  note  r,  in  which  the  old 
and  modern  cases  are  collected,  and  the  law  reviewed  at  length. 

138  Anson,  Cont.  (4th  Ed.)  289;  MORTON  v.  LAMB,  7  Term  R.  125; 
GRAVES  V.  LEGG,  9  Exch.  709;  Dakin  v.  Williams,  11  Wend.  (N.  Y.)  67; 
Dey  V.  Dox,  9  Wend.  (N.  Y.)  129,  24  Am.  Dec.  137;  Bank  v.  Hagner,  1  Pet. 
455,  7  L.  Ed.  219 ;  Quigley  v.  De  Haas,  82  Pa.  267 ;  Lutz  v.  Thompson,  87 
N.  C.  334;  Hamilton  v.  Thrall,  7  Neb.  210;  Davis  v.  Jeffris,  5  S.  D.  352,  58 
N.  W.  815;   post,  p.  461. 

130  MORTON  V.  LAMB,  7  Term  R.  125;  STAVERS  v.  CURLING,  3  Bing. 
N.  C.  355;  Proprietors  of  Mill-Dam  Foundry  v.  Hovey.  21  Pick.  (Mass.)  417; 
Lowber  v.  Bangs,  2  Wall.  728,  17  L.  Ed.  768;  Philadelphia,  W.  &  B.  R.  Co. 
V.  Howard,  13  How.  307,  14  L.  Ed.  157;  City  of  New  Orleans  v.  Texas  &  P. 
Ry.  Co.,  171  U.  S.  312,  18  Sup.  Ct  875,  883,  43  D.  Ed.  178. 

140  MATTOCK  V.  KINGLAKE,  10  Adol.  &  E.  50;  Couch  v.  Ingersol,  2 
Pick.  (Mass.)  292;  Robson  v.  Bohn,  27  Minn.  333,  7  N.  W.  333;  State  v.  Rail- 
road Co.,  21  Minn.  472;  McCoy's  Adm'rs  v.  Bixbee's  Adm'r,  0  Ohio,  310,  27 
Am.  Dec.  258;  Slater  v.  Emerson,  19  How.  224,  15  L.  Ed.  626;  Front  St.  M. 
&  O.  R.  Co.  V.  Butler,  50  Cal.  574;  PHILLIPS  &  COLBY  CONST.  CO.  v. 
SEYMOUR,  91  U.  S.  646,  23  L.  Ed.  341;  Americal  Emigrant  Co.  v.  Adams 
County,  100  U.  S.  61,  25  L.  Ed.  563;  Standard  Gaslight  Co.  v.  Wood,  61  Fed. 
74,  9  C.  C.  A.  362;  LOUD  v.  WATER  CO.,  153  U.  S.  564,  14  Sup.  Ct.  928, 
38  L.  Ed.  822 ;  Reindl  v.  Heath,  115  Wis.  219,  91  N.  W.  734.  "Where  the  act 
of  one  party  must  necessai'ily  precede  any  act  of  the  other,  as  where  one 
stipulates  to  manufacture  an  article  from  materials  to  be  furnished  By  the 
other,  and  the  other  stipulates  to  furnish  the  materials,  the  act  of  furnishing 
the  materials  necessarily  precedes  the  act  of  manufacturing,  aud  will  con- 


4.52  DISCHARGE   OF   CONTRACT.  (Cb.  11 

at  an  earlier  date  than  the  other,  *  *  *  the  rule  is  simple  and 
uniform,  namely,  that  the  covenant  or  promise  that  is  to  be  per- 
formed first  is  independent  and  absolute,  while  the  one  that  is  to 
be  performed  last  is  dependent,  the  performance  of  the  former  being 
a  condition  precedent  to  the  performance  of  the  latter."  ^*^  Where 
a  person  makes  a  promise  to  another  to  convey  land,  for  instance,  the 
date  of  performance  not  being  fixed,  and  the  other  party,  in  consid- 
eration thereof,  promises  to  pay  a  sum  of  money  at  a  fixed  date,  it 
has  been  held  that  the  payment  is  independent  of  the  promise,  and 
that,  "a  time  being  fixed  for  payment,  and  none  for  doing  that  which 
was  the  consideration  for  the  payment,  an  action  lies  for  the  pur- 
chase money,  without  averring  performance  of  the  consideration."  ^*^ 
Where,  on  the  other  hand,  mutual  promises  are  to  be  performed  at 
the  same  time,  as  where  a  person  promises  to  convey  land  or  deliver 
goods  to  another  on  a  certain  day,  and  the  latter,  in  consideration 
thereof,  promises  to  pay  a  sum  of  money  on  that  day,  neither  can 
maintain  an  action  on  the  other's  promise  without  performing,  or 
offering  to  perform,  his  part;  and  it  makes  no  difference  that  it  does 
not  appear  which  promise  was  to  be  first  performed.^ *^ 

Neither  this  nor  any  other  test,  however,  can  be  relied  upon  in  all 
cases,  for  often  it  does  not  appear  when  or  in  what  order  promises 

stltute  a  condition  precedent  witliout  express  words."  Proprietors  of  Mill- 
Dam  Foundry  v.  Hovey,  21  Tick.  (Mass.)  417. 

141  Langd.  Sum.  Cont.  §  122;  Dey  v.  Dox,  9  Wend.  (N.  Y.)  129,  24  Am.  Dec. 
137. 

142  MATTOCK  V.  KINGLAKE,  10  Adol.  &  B.  50.  And  see  Goldsborough 
V.  Orr,  8  Wheat.  217,  5  L.  Ed.  600;  Bean  v.  Atwater,  4  Conn.  3,  10  Am. 
Dec.  91;  Edgar  v.  Boies,  11  Serg.  &  R.  (Pa.)  445;  Lowry  v.  Mehaffy,  10 
Watts  (Pa.)  387;  KANE  v.  HOOD,  13  Pick.  (Mass.)  281;  Headley  v.  Shaw, 
39  111.  354;  Tronson  t.  University,  9  N.  D.  559,  84  N.  W.  474.  "Where  a  con- 
tract for  the  sale  of  land  provides  for  partial  payments  of  the  purchase 
money  prior  to  delivery  of  the  deed,  the  vendor  may  sue  for  such  install- 
ments when  due  without  tendering  a  conveyance.  Paine  v.  Brown,  37  N. 
Y.  228;  Harrington  v.  Higgins.  17  Wend.  (N.  Y.)  376.  But  when,  after  the 
installments  are  all  due,  the  vendor  brings  an  action  for  the  purchase  money, 
he  is  not  entitled  to  recover  without  proving  an  offer  before  suit  to  convey. 
*  *  *  When  the  last  installment  falls  due,  the  payment  of  the  whole  of 
the  unpaid  purchase  money  and  the  conveyance  of  the  land  become  de- 
pendent acts.  BEECHER  v.  CONRADT,  13  N.  Y.  108,  64  Am.  Dec.  53.5. 
And  the  same  rule  applies  when  an  action  is  brought  for  any  installment  pay- 
able at  or  after  the  term  fixed  for  the  delivery  by  the  deed.  EDDY  v. 
DAVIS,  116  N.  Y.  247,  22  N.  E.  362,  363.  See,  also,  GRANT  v.  JOHNSON, 
5  N.  Y.  247;  McCroskey  v.  Ladd,  96  Cal.  455.  31  Pac.  558;  First  Nat.  Bank  v. 
Spear,  12  S.  D.  108,  80  N.  W.  106;  Shelley  r.  Mikkelson,  5  N.  D.  22,  63  N.  W. 
210.  Contra,  SHEEREN  v.  MOSES,  84  111.  448.  See  Harriman,  Cont.  §§ 
321,  322. 

143  See  the  cases  above  cited;  Williams  v.  Hcaley,  3  Denio  (N.  Y.)  303l 
Gazley  v.  Price,  16  Johns.  (N.  Y.)  267 ;  post,  p.  459. 


§§  243-244)  BY   BREACH.  453 

are  to  be  performed.     The  question  in  each  case  is  what  intent  is  dis- 
closed by  the  language  employed.^*'* 

Promises  the  Perfoniiance  of  Which  is  Divisible. 

Contracts  frequently  occur  in  which  the  promise  of  one  or  both 
parties  admits  of  a  more  or  less  complete  performance,  and  the  dam- 
age sustained  by  an  incomplete  performance  or  partial  breach  of  which 
may  be  apportioned  according  to  the  extent  of  failure.  The  per- 
formance of  the  promise  in  such  cases  is  said  to  be  divisible.  The 
promise  is  in  fact  regarded  as  a  number  of  promises  to  do  a  number 
of  similar  acts,  and  a  breach  of  one  or  some  of  them  does  not  discharge 
the  other  party. ^*^  On  the  other  hand,  the  promise  may  be  indi- 
visible or  entire,  and  if  it  is  so,  and  is  not  independent  of  the  promise 
of  the  other  party  as  heretofore  explained,  its  entire  performance  is, 
as  a  rule,  a  condition  concurrent  or  precedent  to  the  liability  of  the 
other  party  to  perform. ^^" 

The  question  of  divisibility  is  difficult,  and  this  difficulty  has  re- 
sulted in  a  direct  conflict  in  the  decisions.  The  question  is  one  of 
construction.  "The  contract  may  be  entire  or  severable,  according  to 
the  circumstances  of  each  particular  case,"  it  has  been  said  in  speaking 
of  contracts  of  sale,  "and  the  criterion  is  to  be  found  in  the  question 
whether  the  whole  quantity — all  of  the  things  as  a  whole — is  of  the 
essence  of  the  contract.     If  it  appear  that  the  purpose  was  to  take 

144  Loud  V.  Water  Co.,  153  U.  S.  HfH,  14  Sup.  Ct.  928,  38  L.  Ed.  822;  Phil- 
adelphia, W.  &  B.  R.  Co.  V.  Howard,  13  How.  307,  14  L.  Ed.  157;  Foley  v. 
Dwyer,  122  Mich.  587,  81  N.  W,  5G9;  Griggs  v.  Moors,  1G8  Mass.  354,  47  N. 
E.  128. 

145  RITCHIE  V.  ATKINSON,  10  East,  295;  Norris  v.  Harris,  15  Cal.  22G; 
McGrath  v.  Cannon,  55  Minn.  457,  57  N.  W.  150 ;  Potsdamer  v.  Kruse,  57  Minn. 
193,  58  N.  W.  983 ;  Fullmer  v.  Proust,  155  Pa.  275,  26  Atl.  543.  35  Am.  St.  Rep. 
881 ;  Gill  V.  Lumber  Co.,  151  Pa.  534,  25  Atl.  120 ;  Ming  v.  Corbin,  142  N.  Y.  334, 
37  N.  E.  105.  Even  where  there  is  an  entire  contract  for  the  sale  of  goods, 
although  if  the  seller  delivers  a  quantity  less  than  he  contracted  to  sell  the 
buyer  may  reject  them,  it  is  generally  held  that  if  the  buyer  accepts  them 
he  must  pay  for  them  at  the  contract  price,  although  the  seller  fails  to  de- 
liver the  rest.  OXENDALE  v.  WETHERELL,  4  Man.  &  R.  429;  Bowker 
v.  Hoyt,  18  Pick.  (Mass.)  555;  Booth  v.  Tyson,  15  Vt.  515;  Clark  v.  Moore, 
3  Mich.  55;  Richards  v.  Shaw,  67  111.  222;  Polhemus  v.  Heiman,  45  Cal.  5(3; 
:McDonough  v.  Marble  Co.,  112  Fed.  634,  50  C.  C.  A.  403.  Contra,  Champlin 
v.  Rowley,  18  Wend.  (N.  Y.)  187,  13  Wend.  (N.  Y.)  258 ;  CATLIN  v.  TOBIAS, 
26  N.  Y.  217,  84  Am.  Dec.  183;  Nightingale  v.  Eisenian,  121  N.  Y.  288,  24  N. 
E.  475;  Haslack  v.  Mayers,  26  N.  J.  Law.  284;  Witherow  v.  Witherow,  16 
Ohio,  238.  Even  in  New  York  the  seller  can  recover,  if  the  acceptance  of 
part  is  made  under  such  circumstances  as  to  be  a  -waiver  of  full  perform- 
ance, as  where  he  is  informed  by  the  seller  that  he  will  not  deliver  the  rest. 
Avery  v.  Wilson,  81  N.  Y.  341,  37  Am.  Rep.  503;  Silberman  v.  Fretz,  16  Misc. 
Rep.  449.  38  N.  Y.  Supp.  151. 

iisHartupee  v.  Crawford  (C.  C.)  56  Fed.  61;  Widman  v.  Gay,  104  Wis. 
277,  SO  N.  W.  450. 


454  DISCHARGE   OF   CONTRACT.  (Cb.  11 

the  whole  or  none,  then  the  contract  would  be  entire ;  otherwise,  it 
would  be  severable.  *  *  *  'Qn  the  whole,  the  weight  of  opinion 
and  the  more  reasonable  rule  would  seem  to  be  that,  where  there  is 
a  purchase  of  different  articles,  at  different  prices,  at  the  same  time, 
the  contract  would  be  severable  as  to  each  article,  unless  the  taking  of 
the  whole  was  rendered  essential  either  by  the  nature  of  the  subject- 
matter  or  by  the  act  of  the  parties.'  This  rule  makes  the  interpretation 
of  the  contract  depend  on  the  intention  of  the  parties  as  manifested 
by  their  acts,  and  by  the  circumstances  of  each  particular  case."  ^^"^ 
Though  this  was  said  in  reference  to  contracts  of  sale,  the  reason 
applies  to  other  contracts  as  well.^*^ 

In  a  leading  case  the  plaintiff  had  promised  to  take  his  ship  to  a 
port,  and  there  load  a  complete  cargo,  and  to  deliver  the  same  on  being 
paid  freight.  He  came  away  with  an  incomplete  cargo,  and  the 
defendant  refused  to  pay  any  freight  on  the  ground  that  the  com- 
pleteness of  the  cargo  was  a  condition  precedent  to  any  payment 
being  due.  Lord  Ellenborough  said  that  whether  it  was  so  or  not 
depended,  "not  on  any  formal  arrangement  of  words,  but  on  the  rea- 
son and  sense  of  the  thing,  as  it  is  to  be  collected  from  the  whole 
contract;  *  *  *  here  the  delivery  of  the  cargo  is  in  its  nature 
divisible,  and  therefore  I  think  it  is  not  a  condition  precedent;  but  the 
plaintiff  is  entitled  to  recover  freight  in  proportion  to  the  extent  of 
such  delivery,  leaving  the  defendant  to  his  remedy  in  damages  for  the 
short  delivery."  ^*® 

Same — Delivery  by  Installments. 

/       Where   there  is  a  contract   for   the   sale   of  goods  deliverable  in 

/    installments,   which   are   to  be   paid   for   on   delivery,   and   the   seller 

I     makes  defective  delivery  in  respect  to  one  installment,  or  the  buyer 

fails  to  take  delivery  or  to  pay  for  an  installment,  the  question  arises 

whether  the  breach  gives  rise  merely  to  a  claim  for  compensation,  or 

to  a  right  to  treat  the  whole  contract  as  repudiated.     It  is  difficult 

to  reconcile  the  English  decisions,  some  of  which  have  held  that  a 

refusal  to  deliver  or  accept  a  particular  installment  is  a  breach  going 

to  the  root  of  the  contract, ^''^  and  others  have  held  the  contrary.^ ^^ 

The  leading  case  in  the  affirmative  is  HOARE  v.  RENNIE."'*"    In  that 

case  the  defendant  agreed  to  buy  from  the  plaintiff  667  tons  of  iron, 

to  be  shipped  from  Sweden  in  about  equal  portions  in  each  of  the 


V 


147  Wooten  V.  Walters,  110  N.  C.  251,  14  S.  E.  734. 

148  Broumel  v.  Rayner,  68  Md.  47,  11  Atl.  833. 
1*0  lUTClilE  V.  ATKINSON,  10  East,  295. 

180  HOARE  V.  RENNIE,  5  Hurl.  &  N.  19;  HONCK  v.  MULLER,  7  Q.  B 
Oiv.  92. 

151  .TONASSOHN  v.  YOUNG,  4  Best  &  S.  290;  SIMPSON  v.  GRIPPIN,  L. 
R.  8  Q.  B.  14;   FREIuTH  v.  BURR,  L.  R.  9  C.  P.  20ii. 

1025  Hurl.  &  N.  19. 


§§  243-2tW:)  BY  BUEAcn.  455 

months  of  June,  July,  August,  and  September,  and  the  plauitiff  shipped 
only  20  tons  in  June,  which  the  defendant  refused  to  accept.  It  was 
held  that  delivery  at  the  time  specified  was  a  condition  precedent, 
and  that  the  plaintiff  could  not  maintain  an  action  against  the  de- 
fendant for  not  accepting.  The  leading  case  in  the  negative  is  SIMP- 
SON V.  CRIPPIN.'"  In  that  case  the  defendant  had  agreed  to  supply 
the  plaintiff  with  6,000  or  8,000  tons  of  coal,  to  be  delivered  in  the 
plaintiff's  wagons  at  the  defendant's  colliery  in  equal  monthly  quanti- 
ties during  the  period  of  12  months  from  July  ist.  During  July  the 
plaintiff  sent  wagons  for  158  tons  only,  and  on  August  ist  the  de- 
fendant wrote  that  the  contract  was  canceled  on  account  of  the 
plaintiff's  failure  to  send  for  the  full  monthly  quantity  in  the  preceding 
month.  It  was  held,  in  an  action  on  the  defendant's  refusal  to  go  on 
with  the  contract,  that  the  breach  in  failing  to  send  wagons  in  suffi- 
cient numbers  in  the  first  month,  though  a  ground  for  compensation, 
did  not  justifv  the  defendant  in  rescinding  the  contract.  Finallv,  in 
MERSEY  STEEL  &  IRON  CO.  v.  NAYLOR,^=*  it  was  decided  that 
failure  of  the  buyer  to  pay  for  the  first  installment  upon  delivery,  unless 
the  circumstances  evince  an  intention  on  his  part  to  be  bound  no  longer 
by  the  contract,  does  not  entitle  the  seller  to  rescind.  The  rule  in 
England  appears  to  be  established  by  this  decision  that  it  is  a  ques- 
tion depending  on  the  terms  of  the  contract  and  the  circumstances 
in  the  case  whether  the  breach  of  contract  is  a  repudiation  of  the 
whole  contract,  giving  a  right  to  put  an  end  to  it,  or  whether  it  merely 
gives  rise  to  a  claim  for  compensation. 

In  this  countrv  the  same  conflict  has  existed,  some  cases  following 
HOARE  V.  RENNIE  ^"  and  some  SIMPSON  v.  CRIPPIN.^"     In/'' 

168  L.  R.  8  Q.  B.  14. 

164  9  App.  Cas.  434,  affirming  9  Q.  B.  DIv.  648. 

166  NORRINGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct  12,  29  L.  Ed. 
366;  Cleveland  Rolling-MiU  Co.  v.  Rhodes,  121  U.  S.  255.  7  Sup.  Ct.  882.  30 
L.  Ed.  920;  Pope  v.  Porter,  102  N.  Y.  366,  7  N.  E.  304;  Clark  v.  Steel  Works, 
3  C.  C.  A.  600,  53  Fed.  494;  Peace  River  Phosphate  Co.  v.  Graffiin  (C.  C.)  58 
Fed.  550;  King  Philip  Mills  v.  Slater,  12  R.  I.  82,  34  Am.  Rep.  603;  RUGG 
V.  MOORE,  110  Pa.  236,  1  Atl.  320;  Reybold  v.  Voorhees,  30  Pa.  116;  Rob- 
son  V.  Bohn,  27  Minn.  333,  7  N.  AV.  357;  Providence  Coal  Co.  v.  Coxe,  19  R.  I. 
380,  582,  35  Atl.  210;  Cresswell  Ranch  &  Cattle  Co.  v.  Martindale,  63  Fed. 
84,  11  C.  C.  A.  33.  See,  also,  Dwinel  v.  Howard,  30  Me.  258 ;  Walton  v.  Black, 
5  Houst  (Del.)  149;  Bradley  v.  King,  44  III.  339;  Stokes  v.  Baars,  18  Fla. 
656;   Higgins  v.  Railroad  Co.,  60  N.  Y.  553. 

168  Bollman  v.  Burt,  61  Md.  415:  Blaekbm-n  v.  Reilly,  47  N.  J.  Law,  290, 
1  Atl.  27.  54  Am.  Rep.  159 ;  Trotter  v.  Heekscher,  40  N.  J.  Eq.  612,  4  Atl.  83 ; 
Mver  V.  Wheeler.  65  Iowa,  390,  21  N.  W.  692;  Hansen  v.  Steam  Heating  Co., 
73  Iowa,  77,  34  N.  W.  495;  GERLI  v.  MANUFACTURING  CO.,  57  N.  J. 
Law,  432,  31  Atl.  401,  30  L.  R.  A.  61.  51  Am.  St  Rep.  611;  Mayor  v.  Scliaub 
Bros.,  96  Md.  534,  54  Atl.  IOC  And  see  West  v.  Bechtel,  125  Mich.  144,  iyi  N, 
W.  69,  51  L.  R.  A.  791. 


456  DISCHARGE   OF   CONTRACT.  (Cll.  11 

the  Supreme  Court  of  the  United  States  in  NORRINGTON  v. 
WRIGHT/ ^^  the  rule  laid  down  in  the  first  of  these  cases  was  ap- 
proved. In  NORRINGTON  v.  WRIGHT  the  contract  was  for  the 
sale  of  "5,000  tons  of  iron  rails,  for  shipment  from  European  port 
or  ports,  at  the  rate  of  about  i,ooo  tons  per  month,  beginning  Feb- 
ruary, 1880,  but  whole  contract  to  be  shipped  before  August,  1880, 
at  $45  per  ton,  ex  ship  Philadelphia,  settlement  cash  on  presentation 
of  bills,"  etc.  It  was  held  that  the  seller  was  bound  to  ship  1,000 
tons  in  each  mouth,  and  that  only  400  tons  having  been  shipped  in 
February,  and  885  tons  in  March,  the  buyer,  although  he  had  paid 
for  the  February  shipment  in  ignorance  of  the  defective  shipments 
in  that  month  and  in  March,  had  the  right  to  rescind  the  whole  contract 
for  the  defective  deliveries  in  respect  to  the  first  installment.  The 
decision  rests  on  the  ground  that  in  contracts  of  merchants  time  is 
£f_the_..essejice,  and  that  the  shipment  at  the  time  specified  in  the 
contract  was  a  condition  precedent,  on  failure  of  which  the  buyer 
mJght  rescind  the  whole  contract.  It  is  to  be  noted  that  Gray,  J.,  in 
commenting  on  MERSEY  STEEL  &  IRON  CO.  v.  NAYLOR,  dis- 
tinguishes that  case,  pointing  out  that  the  grounds  of  the  decision, 
as  stated  by  the  lord  chancellor,  are  applicable  only  to  the  case  of 
failure  by  the  buyer  to  pay  for,  and  not  to  failure  of  the  seller  to 
deliver,  the  first  installment;  that  is,  that  since  delivery  must  pre- 
cede payment  no  particular  payment  can  be  a  condition  precedent  to 
the  entire  contract,  and  hence  the  payment  cannot  be  a  condition 
precedent  to  the  subsequent  fulfillment  of  the  unfulfilled  part,  by 
delivery  of  subsequent  installments. ^^^ 

Same — Repudiation  of  Contract. 

The  courts  are  agreed  that  if  a  default  in  one  item  of  a  continuous 
contract  of  this  nature  is  accompanied  with  an  announcement  of  inten- 
tion not  to  perform  the  contract  upon  the  agreed  terms,  the  other 
party  may  treat  the  contract  as  being  at  an  end.^^* 

Same — Express  Provision  for  Discharge. 

It  is  always  permissible  for  the  parties  to  agree  that  the  entire  per- 
formance of  a  consideration,  in  its  nature  divisible,  shall  be  a_£ondi- 

157  115  u.  S.  188,  6  Slip.  Ct.  12,  29  L.  Ed.  BCG. 

108  iMere  failure  to  pay,  not  evincing  a  purpose  to  renounce,  beld  not  to 
justify  the  seller  in  treating  the  coutract  as  abandoned.  Monarch  Cycle 
Mfg.  Co.  V.  Wheel  Co.,  105  i'ed.  324,  44  C.  C.  A.  523;  West  v.  Bechtel,  125" 
Mich.  144,  84  N.  W.  m,  51  L.  K.  A.  791.  But  see  Eobson  v.  Bohn,  27  Minn. 
333,  7  N.  W.  357;  RUGG  v.  MOORE,  110  Pa.  23(5,  1  Atl.  320;  Hull  Coal  & 
Coke  Co.  V.  Coke  Co.,  51  C.  C.  A.  213,  113  Fed.  25G.  Cf.  Beatty  v.  Lumber 
Co.,  77  Minn.  272,  79  N.  W.  1013. 

150  WITHERS  V.  REYNOLDS,  2  Barn.  &  Adol.  882;  CATLIN  v.  TOBIAS, 
26  N.  Y.  217,  84  Am.  Dec.  183;  Stephenson  v.  Cady,  117  Mass.  6;  ante,  pp. 
444,  447.    And  see  Bloomer  y.  Bernstein,  L.  R.  9  C.  P.  5SS . 


§§  243-244)  BY  BREACH.  457 

tion_4ire€«4eftt-t€^-th€--right  to  a  fulfillment  by  -th€  other  party  of  Uis 
jTrnmise-^""  This  point  is  illustrated  by  a  case  in  which  the  master 
of  a  ship  gave  a  sailor  a  note  promising  to  pay  him  30  guineas,  which 
was  more  than  the  ordinary  wages,  "provided  he  proceeds,  continues, 
and  docs  his  duty  as  second  mate  in  the  said  ship  from  hence  to  the 
port  of  Liverpool."  The  sailor  died  after  having  performed  the 
agreement  for  about  seven  weeks,  but  about  three  weeks  before  the 
ship  reached  Liverpool.  The  court  held  that  the  sailor's  representa- 
tives could  not  recover  upon  the  express  contract,  for  its  terms  were 
unfulfilled ;  nor  could  they  recover  upon  a  quantum  meruit  for  such 
services  as  he  had  rendered,  because  the  terms  of  the  express  contract 
excluded  the  arising  of  any  such  implied  contract  as  would  form 
the  basis  of  a  claim  upon  a  quantum  meruit.  "It  may  fairly  be  con- 
sidered," it  was  said,  "that  the  parties  themselves  understood  that, 
if  the  whole  duty  were  performed,  the  mate  was  to  receive  the  whole 
sum,  and  that  he  was  not  to  receive  anything  unless  he  did  continue 
on  board  during  the  whole  voyage."  ^'^ 

Subsidiary  Promises. 

The  breach  committed  by  one  of  the  parties  may  be  a  breach  of  a 
term  of  the  contract  only,  and_of  a  term  whicli  the  parties  have  not, 
upon  a  reasonable  construction  of  the  contract,  regarded  as  vital  to 
it$  existence.  The  injured  party  is  then  bound  to  continue  his  per- 
formance of  the  contract,  but  may  bring  an  action  to  recover  such 
damages  as  he  has  sustained  by  the  default  of  the  other. ^°^  In  a 
leading  case,  the  plaintiff,  a  professional  singer,  had  entered  into  a 
contract  with  the  defendant,  director  of  an  opera,  for  his  services  as  a 
singer  for  a  considerable  time,  and  upon  a  number  of  terms,  one  of 
which  was  that  the  plaintiff  should  be  in  London  without  fail  at 
least  six  days  before  the  commencement  of  his  engagement,  for  the 
purpose  of  rehearsals.  The  plaintiff  broke  this  term  by  arriving  only 
two  days  before  the  commencement  of  the  engagement,  and  the  de- 
fendant treated  this  breach  as  a  discharge  of  the  contract.  The  court 
held  that,  in  the  absence  of  any  express  declaration  that  the  term 
was  vital  to  the  contract,  it  must  "look  to  the  whole  contract,  and  see 
whether  the  particular  stipulation  goes  to  the  root  of  the  matter,  so 
that  a  failure  to  perform  it  would  render  the  performance  of  the  rest 
of  the  contract  by  the  plaintiff  a  thing  different,  in  substance,  from 

1 60  CUTTER  V.  POWELL,  6  Term.  R.  320;  2  Smith,  Lead.  Cas.  1,  and 
notes;  Leonard  v.  Dyer,  2G  Conn.  172,  G8  Am.  Dec.  382;  Martin  v,  Sboen- 
berger,  S  Watts  &  S.  (l»a.)  367;   Hartley  v.  Decker,  89  Pa.  470. 

161  CUTTER  V.  POWELL,  6  Term  R.  320. 

162TARRABOCHIA  v.  HICKIE,  1  Hurl.  &  N.  183;  Weintz  v.  Hafner,  78 
III.  27;  BOONE  v.  EYRE,  1  II.  Bl.  273,  note.  It  is  under  this  principle  that 
a  party  is  not  discharged  by  failure  of  the  other  to  perform  within  the  time 
stipulated,  where  the  time  is  not  of  the  essence.     Ante,  pp.  408,  450. 


•V 


458  DISCHARGE   OF   CONTRACT.  (Oil.  11 

what  the  defendant  has  stipulated  for,  or  whether  it  merely  partially 
affects  it,  and  may  be  compensated  for  in  damages;"  and  the  court 
held  that  the  term  did  not  go  to  the  root  of  the  matter,  so  as  to  con- 
stitute a  condition  precedent/''^ 

Where  a  promise  is  to  be  performed  in  the  course  of  the  performance 
of  the  contract,  and  after  some  of  the  consideration,  of  which  it  forms 
a  part,  has  been  given,  it  will  be  regarded  as  subsidiary,  and  its 
breach  will  not  effect  a  discharge  unless  there  be  words  expressing 
that  it  is  a  condition  precedent,  or  unless  the  performance  of  the 
thing  promised  be  plainly  essential  to  the  contract/*" 


L64 


\      ;  CONDITIONAL  PROMISES. 

\ 

245.  r^VTiere  a  promise  is  subject  to  a  condition,  that  condition  mnst, 
as  regards  its  relation  to  the  promise  in  time,  be  either — 

(a)  Subsequent, 
'X,           (b)    Concurrent,  or 

(c)    Precedent. 

246.  In  the  case  of  a  condition  subsequent,  the  rights  of  the  promisee 
are  determinable  upon  a  specified  event.  The  condition  does 
not  aflcect  their  commencement,  but  its  occurrence  brings  them 
to  a  conclusion. 

247.  In  the  case  of  a  condition  concurrent,  the  promisee's  rights  are 
dependent  upon  his  doing,  or  being  ready  to  do,  something 
simultaneously  -with  the  performance  by  the  promisor. 

248.  In  the  case  of  a  condition  precedent,  the  promisee's  rights  do 
not  arise  until  something  has  been  done  or  has  happened,  or 
some  period  of  time  has  elapsed. 

249.  Where  the  promise  in  a  contract  is  conditional,  the  promisor 
may  be  discharged — 

I      (a)    By  the  promisee's  failure  to  perform  a  concurrent  condition. 

(b)  By  the  fact  that  there  has  been  a  total  or  substantial  failure  on 
the  promisee's  part  to  do  that  which  he  -wa-s  bound  to  do  under 
the  contract,— a  state  of  things  sometimes  described  as  virtual 
failure  of  consideration. 

(c)  By  the  untruth  of  some  one  statement,  or  the  breach  of  some 
one  term,  which  the  parties  considered  to  be  vital  to  the 
contract. 

Conditions  Subsequent. 

We  have  already  dealt  with  conditions  subsequent  in  treating  of 
discharge  of  contract  by  agreement,  and  it  is  unnecessary  to  speak 
further  of  them  here.^""* 

163  BETTINI  V.  GYE.  1  Q.  B.  Div.  183. 

104  Anson,    Cont.   (4tli   Ed.)  294.   citing  GRAVES   v.   LEGG.   9   Exch.   71G; 
per  Parke,  B.    See,  also,  CAMPBELL  v.  JONES,  6  Term  11.  570. 
100  Ante,  p.  427. 


§§  245-249)  BY  BREACH.  4:59 

Breach  of  Concurrent  Condition. 

Concurrent  conditions  seem,  in  point  of  fact,  to  be  conditions  pre- 
cedent, for  the  simultaneous  performance  of  his  promise  by  each  party 
must  needs  be  impossible  except  in  contemplation  of  law.  What  is 
meant  by  the  phrase  is  that  there  must  be  a  concurrent  readiness  and 
willingness  to  perform,  and  that,  if  one  is  not  able  or  willing  to  do 
bis  part,  the  other  is  discharged.  This  form  of  condition  is  more 
particularly  applicable  to  contracts  of  sale,  where  payment  and  delivery 
are  assumed,  in  the  absence  of  express  stipulation,  to  be  intended 
to  be  contemporaneous.^*^®  Where  goods  are  sold,  and  nothing  is 
said  as  to  the  time  of  the  delivery  or  the  time  of  payment,  the  seller 
cannot  demand  payment  of  the  price  unless  he  is  ready  at  the  same 
time  to  deliver  the  goods,  and  the  buyer  cannot  demand  possession  of 
the  goods  unless  he  is  ready  to  pay  the  price.^®^  In  an  action  for 
breach  of  a  contract  by  which  the  plaintiff  had  agreed  to  buy  a  certain 
quantity  of  corn  of  the  defendant  at  a  certain  price,  and  the  defendant 
had  promised  to  deliver  the  corn  within  one  month,  the  plaintiff 
merely  alleged  that  he  had  always  been  ready  and  willing  to  receive  the 
corn.  The  court  held  that  as  the  plaintiff  did  not  allege  that  he  had 
been  ready  to  pay  the  price,  there  was  nothing,  as  he  had  shaped  his 
case,  to  show  that  he  had  not  himself  broken  the  contract  and  dis- 
charged the  defendant  by  nonreadiness  to  pay. 

Conditions  Precedent — Suspensory  Conditions'^ 

We  are  here  dealing  with  the  subject  of  discharge  of  contract,  and 
are  therefore  concerned  with  those  conditions  precedent  the  nonful- 
fillment of  which  is  a  cause  of  discharge.  To  make  the  subject  clear, 
however,  we  must  mention  and  explain  a  class  of  conditions  precedent 
which  do  not  operate  as  a  discharge,  but  merely  suspend  the  operation 
of  a  promise  until  they  are  fulfilled.  These  are  called  by  Anson  float- 
ing or  suspensory  conditions.  A  promise,  for  instance,  may  be  con- 
ditional upon  the  happening  of  an  uncertain  event,  as  in  the  case  of 
a  contract  of  fire  or  marine  insurance,  where  the  insurer's  liability 


166  Ansson,  Cont.  (4tli  Ed.)  298. 

187  MOR.TON  V.  LAMB,  7  Term  R.  125;  Bloxam  v.  Sanders.  4  Barn.  &  C. 
941:  SteplKuson  v.  Cady,  117  Mass.  G;  HAFGOOD  v.  SHAW,  105  Mass.  270; 
Porter  v.  Rose,  12  Johns.  (N.  Y.)  209,  7  Am.  Dec.  306;  Cook  v.  Ferral's 
Adm'rs,  13  Wend.  (N.  Y.)  285;  Phelps  v.  Hubbard,  51  Vt.  489;  Hough  v. 
Rawson,  17  111.  588;  Posey  v.  Scales,  55  Ind.  282;  Simmons  v.  Green.  35 
Ohio  St.  104 ;  Campbell  v.  Moran  Bros.  Co.,  97  Fed.  477,  38  C.  C.  A.  293 ;  Allen 
V.  Hartfield,  76  111.  358.  So,  also,  in  case  of  a  sale  of  real  estate.  Smith  v. 
Lewis,  26  Conn.  110 ;  Swan  v.  Drury,  22  Pick.  (Mass.)  485 ;  Clark  v.  Weiss,  87 
111.  438,  29  Am.  Rep.  60 ;  Gazley  v.  Price,  16  Johns.  (N.  Y.)  267  ;  Columbia  Bank 
V.  Hagnei-,  1  Pet.  455,  7  L.  Ed.  219.    Ante,  p.  452. 

i«3  Morton  v.  Lamb,  7  Term    R.  125. 

189  Anson,  Cont.  (4th  Ed.)  296,  297. 


168 

leo 


460  DISCHARGE   OF   CONTRACT.  (Cll.  11 

on  his  promise  does  not  accrue  until  the  loss  of  the  property  insured. 
The  condition  suspends  the  operation  of  the  promise. 

Again,  a  promise  may  depend  upon  the  act  of  the  promisor  or  of 
some  third  person.  For  instance,  it  may  be  made  a  condition  pre- 
cedent to  one  party's  liability  under  the  contract  that  he  shall  be 
satisfied  with  the  other  party's  performance ;  and  in  such  a  case,  by 
the  weight  of  authority,  he  cannot  be  compelled  to  perform  his  part, 
unless  he  is  satisfied.^ '°  Other  examples  are  in  the  case  of  promises 
to  pay  for  the  construction  of  a  building  or  other  construction  work, 
conditional  upon  the  approval  and  certificate  of  the  architect  or  other 
third  person.  In  such  cases  payment  cannot  be  enforced  without 
such  approval  unless  there  is  fraud,  or  such  gross  mistake  as  to  neces- 
sarily imply  bad  faith. ^'^^ 

Again,  a  promise  may  be  conditional  in  the  sense  that  its  operation 
is  postponed  until  the  lapse  of  a  certain  time,  as  in  case  of  a  debt  for 
which  a  fixed  period  of  credit  is  given,  or  until  the  happening  of  an 
event  that  is  certain  to  happen,  as  in  the  case  of  a  contract  of  life 
insurance. 

Or,  again,  a  promise  may  be  conditional  in  the  sense  that  its  opera- 
tion awaits  the  performance  of  some  act  to  be  done  by  the  promisee. 
If  no  time  is  specified  in  which  the  act  is  to  be  done,  the  nonfulfillment 
of  the  condition  merely  suspends,  and  does  not  discharge,  the  rights 
of  the  promisee.  Illustrations  of  such  conditions  are  furnished  by 
cases  of  promises  conditional  upon  demand  or  notice.  If  a  person 
promises  another  to  do  something  upon  demand,  he  cannot  be  sued 
until  demand  has  been  made;^'^    or  if  he  promises  to  do  something 

170  Ante,  p.  432. 

171  MORGAN  V.  BIENIE,  9  Bing.  672;  Martinsbnrg  &  P.  R.  Co.  v.  March, 
114  U.  S.  549,  5  Sup.  Ct.  1035,  29  L.  Ed.  255;  Kihlberg  v.  United  States,  97 
U.  S.  398,  24  L.  Ed.  1106;  Sweeney  v.  United  States,  109  U.  S.  CIS,  3  Sup. 
Ct.  344,  27  L.  Ed.  1053;  Claicago,  S.  F.  &  C.  R.  Co.  v.  Price,  138  U.  S.  185, 
11  Sup.  Ct.  290,  34  L.  Ed.  917;  Kennedy  v.  Poor,  151  Pa.  472,  25  Atl.  119; 
Lewis  V.  Railroad  Co.  (C.  C.)  49  Fed.  708;  Bradner  v.  Roffsell,  57  N.  J.  Law, 
412,  31  Atl.  3S7;  Gilmore  v.  Courtney,  158  111.  432,  41  N.  E.  1023;  Ashley  v. 
Henehan,  56  Ohio  St.  559,  47  N.  E.  573;  King  v.  City  of  DuJuth.  78  Minn. 
155,  80  N.  W.  874 ;  John  Pritzlaff  Hardware  Co.  v.  Berghoefer,  103  Wis.  359, 
79  N,  W.  504.  Where  the  recovery  of  sick  benefits  depended  on  certificate 
of  a  physician,  his  refusal  to  make  it  did  not  excuse  failure  to  produce  It. 
Audette  v.  L'Union  St.  Joseph,  178  Mass.  113,  59  N.  E.  0G8.  W^here  there 
is  fraud  or  bad  faith,  the  action  of  the  third  person  is  not  conclusive.  Balti- 
more &  O.  R.  Co.  V.  Brj^don,  65  Md.  611,  9  Atl.  120,  57  Am.  Rep.  318;  Whelen 
V.  Boyd,  114  Pa.  228,  6  Atl.  384;  Teal  v.  Bilby,  123  U.  S.  572.  8  Sup.  Ct.  2G9, 
31  L.  Ed.  263.  In  New  York  it  is  held  that  failure  to  obtain  the  certificate 
will  not  defeat  a  recovery  if  it  is  refused  unreasonably.  Vought  v.  Williams, 
120  N.  Y.  253,  24  N.  E.  195,  8  L.  R.  A.  591,  17  Am.  St.  Rep.  034;  MacKnight 
Flintic  Stone  Co.  v.  City  of  New  York,  160  N.  Y.  72,  54  N.  E.  661.  See,  also, 
Bird  v.  St.  Johns  Episcopal  Church,  154  Ind.  138,  56  N.  E.  129.  Cf.  Andette 
V.  L'Union  St.  Joseph,  supra. 

1T2  Allen  V.  Allen,  116  Iowa,  697,  88  N.  W.  1091. 


§§  245-249)  BY  BitEACH.  4G1 

upon  the  happening  of  an  event,  and  stipulates  that  notice  shall  be 
given  him  of  the  event  having  happened,  he  cannot  be  sued  until 
such  notice  has  been  given.  Even  if  there  is  no  such  stipulation  for 
notice,  yet,  if  the  happening  of  the  event  is  peculiarly  within  the 
knowledge  of  the  promisee,  an  implied  condition  will  be  imported 
into  the  contract  that  notice  must  be  given  before  a  suit  can  be 
rraintained.^'"* 

Same — Vital  Conditions. 

In  the  cases  last  considered,  neither  the  nonfulfillment  of  the  con- 
dition nor  an  action  brought  before  fulfillment  will  discharge  the 
jiromisor.  The  condition  merely  suspends  the  right  to  performance 
of  the  promise.^''* 

The  conditions  with  which  we  are  now  concerned  effect  a  discharge 
of  contract  by  their  breach. 

Where  the  promise  of  one  party  is  conditional  upon  the  promise 
of  the  other,  the  performance  of  the  latter  promise  is  either  a  condition 
precedent  or  a  condition  concurrent,  as  the  case  may  be,  and  in  either 
case  the  nonperformance  of  the  condition  not  only  gives  ground  for 
an  action  for  breach  of  the  contract,  but  discharges  the  contract. 
Where  the  promise  of  each  party  is  the  whole  consideration  for  the 
promise  of  the  other,  and  there  is  nothing  to  indicate  that  either  was 
to  perform  first,  or  that  the  promises  are  independent,  the  case  is  one 
of  concurrent  conditions.^^^ 

It  may  appeal*,  however,  either  expressly,  or  impliedly  from  the 
nature  of  the  contract,  that  one  promise  is  to  be  performed  before 
the  other.  In  such  a  case,  as  we  have  seen,  the  promiise  which  is  to  be 
first  performed  is  independent,  and  the  promisee  may  enforce  it,  or 
sue  for  its  breach,  without  having  performed,  or  ofifered  to  perform, 
on  his  part.  The  promise  of  the  latter,  on  the  other  hand,  is  condi- 
tional ;  that  is,  performance  by  the  other  is  a  condition  precedent  to 
any  liability  to  perform  it.^''^  If  a  person  promises  to  work  for  an- 
other, or  to  build  or  repair  a  house  for  him,  and  the  latter  agrees  to 
pay  him  certain  compensation  therefor,  the  promise  to  work  or  to 
build  the  house  is  impliedly,  from  the  nature  of  the  contract,  to  be 
first  performed,   and   is  independent.     The   promise  to   pay,   on   the 


173  MAKIN  V.  WATKINSON,  L.  R.  0  Exch.  25. 

174  Palmer  v.  Temple,  9  Adol.  &  E.  508. 

17 s  MORTON  V.  LAMB,  7  Term  R.  125;  GRAVES  v.  LEGG,  9  Exch.  709; 
Dakin  v.  Williama,  11  Wend.  (N.  Y.)  07;  Bey  v.  Dox,  9  Wend.  (N.  Y.)  129,  24 
Am.  Dec.  137;  People  v.  Glann,  70  111.  232  ;  Columbia  Bank  v.  Hagner,  1  Pet. 
455,  7  L.  Ed.  219;  Qiiiglej'  v.  De  Haas,  82  Pa.  207;  Lutz  v.  Thompson,  87 
N.  C.  334 ;  Clark  v.  Collier,  100  Cal.  250,  34  Pac.  077 ;  Leslie  v.  Casey,  59  N. 
J.  Law,  6,  35  Atl.  6 ;  GRAY  v.  SMITH  (C.  C.)  76  Fed.  525.    Ante,  p.  459.' 

17  6  Ante,  p.  450. 


462  DISCHARGE   OF   CONTRACT.  (Ch.  ll 

Other  hand,  is  conditional.  The  servant^''''  or  contractor  ^'^'  cannot 
recover  unless  he  shows  a  performance  on  his  part,  or  unless  he  was 
pi  evented  from  fully  performing  by  the  other  party,  or  by  such  an 
impossibility  as  excuses  him.  If  a  time  is  fixed  for  his  performance, 
and  it  is  of  the  essence  of  the  contract,  a  failure  to  perform  within 
that  time  will  discharge  the  other  party.^'^" 

"^        Same — Executory  Contract  of  Sale.  \ 

In  every  executory  contract  of  sale,  where  the  goods  are  sold  by 
description,  there  is  an  implied  condition,  often  miscalled  an  implied 
warranty, ^'*°  that  the  goods  shall  conform  to  the  description.  In  such 
cases  the  tender  of  goods  answering  the  description  is  a  condition 
precedent  to  the  buyer's  liability,  and   if  the   condition  is  not  per- 


177  If  the  servant  without  legal  excuse  abandons  the  employment  before 
full  performance,  he  can  recover  nothing  for  his  services,  neither  upon  the 
contract,  because  under  an  entire  contract  full  performance  is  a  condition 
precedent  to  the  right  of  recovery  thereon,  nor  upon  an  implied  contract, 
because  the  special  contract  conti'ols  the  rights  of  the  parties  in  respect  to 
what  has  been  done  under  it,  and  excludes  any  implied  contract.  STAKK 
V.  PARKER,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425;  Olmstead  v.  Beale,  19 
Pick.  (Mass.)  528 ;  Miller  v.  Goddard,  34  Me.  104,  5G  Am.  Dec.  638 ;  Lawrence 
V.  INIiller,  86  N.  Y.  131;  Goldstein  v.  White  (Com.  PI.)  16  N.  Y.  Supp.  860; 
Hansen  v.  Erickson,  28  111.  257;  Thrift  v.  Payne,  71  111.  408;  Peterson  v. 
Mayer,  46  Minn.  468,  49  N.  W.  245,  13  L.  R.  A.  72;  Diefenback  v.  Stark,  56 
Wis.  462,  14  N.  W.  621.  43  Am.  Rep.  719.  But  see  Hilderbrand  v.  American 
Fine  Arts  Co.  (Wis.)  85  N.  W.  268,  holding  that  a  servant  discharged  for  cause 
may  recover  for  services  rendered  subject  to  the  employer's  right  to  recoup 
damages  by  reason  of  facts  justifying  discharge.  In  some  states,  however, 
a  recovery  upon  a  quantum  meruit,  to  tlie  extent  of  benefits  received,  is  per- 
mitted, the  recovery,  if  any,  being  estimated  at  the  contract  price,  with  de- 
duction for  what  it  would  cost  to  procure  a  completion  and  of  any  dam- 
ages sustained  by  reason  of  the  breach.  BRITTON  v.  TURNER,  6  X.  H. 
481,  26  Am.  Dec.  713;  McClay  v.  Hedge.  18  Iowa,  66;  Duncan  v.  Baker,  21 
Kan.  99;  Parcel!  v.  McComber,  11  Neb.  209,  11  N.  W.  529,  38  Am.  Rep.  366; 
West  V.  Van  Pelt,  34  Neb,  63,  51  N.  W.  313. 

178  Homer  v.  Shaw,  177  Mass.  1,  58  N.  E.  160.  As  to  substantial  perform- 
ance, ante,  p.  iSl. 

170  Carter  v.  Phillips,  144  Mass.  100.  30  N.  E.  500;  Goldsmith  v.  Guild,  10 
Allen  (Mass.)  239;  Taylor  v.  Longworth,  14  Pet.  172,  10  L.  Ed.  405;  Hicks  v. 
Aylsworth,  13  R.  I.  562;  Wilson  v.  Roots,  119  111.  379.  10  N.  E.  204;  Chrisman 
V.  Miller,  2]  111.  227;  WJ^lkoop  v.  Cowing,  21  111.  570;  Grigg  v.  Landis,  21 
N.  J.  Eq.  494.  In  the  case  of  a  contract  for  sale  of  goods,  failure  to  deliver 
at  the  time  specified  discharges  the  buyer,  and  he  is  not  bound  to  accept  a  sub- 
sequent tender.  Welsh  v.  Gossler,  89  N.  Y.  540;  Jones  v.  U.  S.,  96  U.  S.  24, 
24  L.  Ed.  644:  ante,  p.  408. 

180  "Two  things  are  often  confounded.  *  •  •  If  a  man  offers  to  buy 
peas  of  another,  and  he  sends  him  beans,  he  does  not  perform  his  con- 
tract. But  that  is  not  a  warranty."  Per  Lord  Abinger  in  Chanter  v  Hop- 
kins, 4  Mees.  &  W.  399.  See.  also.  Bowes  v.  Shand,  2  App.  Cas.  455,  480; 
POPE  v.  ALLIS,  115  U.  S.  371,  6  Sup.  Ct.  69,  29  L.  Ed.  393. 


§§  245-249)  BY  BREACH.  4G3 

formed  he  is  entitled  to  reject  the  goods.^**  Moreover,  in  a  sale  of 
goods  by  description,  where  the  buyer  has  not  an  opportunity  to  ex- 
amine the  goods,  there  is  also  an  implied  condition  that  the  goods 
shall  be  salable  or  merchantable, ^^^  and  under  some  circumstances 
a  condition  that  goods  ordered  for  a  particular  purpose  are  reasonably 
fit  for  that  purpose  is  implied. ^^^  These  implied  conditions  are  fre- 
quently spoken  of  as  warranties,  but  inasmuch  as  they  go  to  the 
essence  of  the  contract  the  latter  term  is  misleading.  The  courts  in 
different  jurisdictions  differ  as  to  whether  such  a  condition  survives 
acceptance.^"*  But  all  cases  agree  that  where  the  property  has  not 
passed,  the  buyer  is  discharged  by  a  failure  of  such  an  implied  condi- 
tion ;  and  that  he  may  reject  the  goods,  and  may  also  bring  an  action 
for  such  damages  as  he  has  sustained.^" ^  For  the  same  reason,  the 
buyer  may  reject  the  goods  if  they  fail  to  conform  to  the  quality 
which  the  seller  warranted  they  should  possess;^®'  for  an  under- 
taking that  goods  shall  possess  a  certain  quality,  whether  in  the  form 
of  a  description  or  a  warranty,  is  "a  condition,  the  performance  of 
which  is  precedent  to  any  obligation  upon  the  vendee  under  the  con- 
tract, because  the  existence  of  these  qualities,  being  part  of  the  de- 
scription of  the  thing  sold,  becomes  essential  to  its  identity,  and  the 
vendee  cannot  be  obliged  to  receive  and  pay  for  a  thing  different 
from  that  for  which  he  contracted."  ^*^ 

181  Josling  V.  Kingsford,  32  L.  J.  C.  P.  904;  Allan  v.  Lake.  18  Q.  B.  5G0; 
POPE  V.  ALLIS,  115  U.  S.  363,  371,  6  Sup.  Ct.  09,  29  L.  Ed.  393;  Bagley  v. 
Rolling-Mill  Co.  (C.  C.)  21  Fed.  159,  162.  Se'e,  also,  NORRINGTON  v. 
WRIGHT,  115  U.  S.  188,  203,  6  Sup.  Ct  12,  29  L.  Ed.  366.  per  Gray,  J.;  Filley 
V.  Pope,  115  U.  S.  213,  6  Sup.  Ct.  19,  29  L.  Ed.  372;  Jones  v.  George,  61  Tex. 
345,  349,  48  Am.  Rep.  280;  Avery  v.  Miller,  118  Mass.  500;  Haase  v.  Nonne- 
macher,  21  Miun.  486,  490;  Dailey  v.  Green,  15  Pa.  118;  Woodle  v.  Whitney, 
23  Wis.  55,  99  Am.  Dec.  102;  WOLCOTT  v.  MOUNT,  36  N.  J.  Law,  202, 
13  Am.  Rep.  438;  Morse  t.  Moore,  83  Me.  473,  479,  22  Atl.  362,  13  L.  R.  A. 
224,  23  Am.  St  Rep.  783.  Although  the  sale  is  by  sample,  it  Is  not  enough 
that  the  bulk  corresponds  with  the  sample  if  it  does  not  correspond  witJi  the 
description.     Michals  v.  Godts,  10  Exch.  191. 

182  Jones  V.  Just  L.  R.  3  Q.  B.  197;  Murchie  v.  Cornell,  155  Mass.  60,  29 
N.  E.  207.  14  L.  R.  A.  492,  31  Am.  St  Rep.  526;  English  v.  Commission  Co., 
57  Fed.  451,  6  C.  C.  A.  416. 

183  Jones  V.  Just  L.  R.  3  Q.  B.  197;  Kellogg  Bridge  Co.  v.  flamilton,  110 
U.  S.  108,  3  Sup.  Ct  537,  28  L.  Ed.  86 ;  Hoe  v.  Sanborn,  21  N.  Y.  552,  78  Am. 
Dec.  163. 

184  Post  p.  467. 

185  POPE  V.  ALLIS,  115  U.  S.  363,  371,  6  Sup.  Ct  09,  29  L.  Ed.  393;  Anson, 
Cent.  (8th  Ed.)  302. 

186  Street  v.  Blay,  2  Barn.  &  Adol.  456;  Syers  v.  Jonas,  2  Exch.  Ill,  117; 
Hellbutt  v.  Hickson.  L.  R.  7  C.  P.  438,  451;  Dailey  v.  Green,  15  Pa.  126; 
Doane  v.  Dmiham,  65  111.  512,  79  111.  131;  Cox  v.  Long.  69  N.  C.  7,  9;  Lewis 
V.  Rouutree,  78  N.  C.  323;  Byers  v.  Chapin.  28  Ohio  St  300;  Bigger  r. 
Bovard,  20  Kan.  204;   Polhemus  v.  Heiman,  45  Cal.  573. 

187  2  Smith.  Lead.  Cas.  (8th  Am.  Ed.)  31  :  POPE  v.  ALLIS,  115  U.  S.  363, 
6  Sup.  Ct  69,  29  L.  Ed.  393;   Benj.  Sales,  §  895. 


4G4  DISCHARGE   OF  CONTRACT.  (Cli.  11 

Same — Bxeciited  Contract  of  Sale. 

Where  the  buyer  has  accepted  the  g-Qods,  it  is  held  in  England  and 
in  many  jurisdictions  in  this  country  that  he  cannot  afterwards  reject 
them.^^^  By  accepting  he  waives  his  right  to  reject  them,  and  must 
seek  his  remedy  by  action  on  the  warranty  or  by  setting  up  the  breach 
in  diminution  of  the  price.  And  this  applies  whether  the  sale  is  of 
specific  goods  unconditionally — that  is,  goods  ascertained  and  agreed 
upon  at  the  time  of  the  contract — or  whether  the  sale  is  of  unascer- 
tained goods,  which  are  subsequently  accepted.  In  some  states,  how- 
ever, where  there  is  an  express  warranty,  it  is  held  that  the  buyer 
may  rescind  the  contract  for  breach  of  the  warranty,  notwithstanding 
acceptance,  and  may  return  the  goods.^*^ 

Same — Conditions  Precedent  in  Narrower  Sense. 

In  the  cases  with  which  we  have  just  been  dealing,  one  of  the  par- 
ties to  a  contract  has  been  excused  from  performance  of  his  promise 
by  reason  of  the  entire  failure  of  the  other  party  to  perform  his  promise. 
We  now  come  to  what  Sir  William  Anson  calls  conditions  precedent 
in  the  narrower  and  more  frequent  use  of  the  term  as  meaning  a 
single  term  in  the  contract,  but  a  term  possessing  a  particular  char- 
acter. In  this  sense  a  condition  precedent  is  a  statement  or  promise, 
the  untruth  or  nonperformance  of  which  discharges  the  contract.^ "° 

The  chief  difficulty  with  regard  to  conditions  precedent  consists  in 

188  Street  v.  Blay,  2  Bam.  &  Adol.  456;  Gompertz  v.  Denton,  1  Cromp.  & 
M.  207;  Poultou  v.  Lattimore,  9  Barn.  «&  C.  259;  Thornton  v.  Wynn,  12 
Wheat.  183.  6  L.  Ed.  595;  Matteson  v.  Holt,  45  Vt.  336;  FREYMAIS  y. 
KNECIIT,  78  Pa.  141;  Muller  v.  Eno,  14  N.  Y.  597;  Fairbank  Canning  Co. 
V.  Metzger,  118  x\.  Y.  260,  269,  23  N.  E.  372,  16  Am.  St.  Rep.  753;  Hoover  v. 
Sidener,  98  Ind.  290;  Merrick  v.  Wiltse,  37  Minn.  41,  33  N.  W.  3;  Wright  v. 
Davenport,  44  Tex.  164. 

189  BRYANT  V.  ISBURGH,  13  Gray  (Mass.)  G07;  Smith  v.  Hale,  158  Mass. 
178,  33  N.  E.  493,  35  Am.  St.  Rep.  485;  Marshall  v.  Perry,  07  Me.  78;  Frank- 
lin V.  Long,  7  Gill  &  J.  (Md.)  407;  Sparling  v.  Marks,  86  111.  125;  Branson  v. 
Turner,  77  Mo.  489;  Upton  Mfg.  Co.  v.  Huiske,  69  Iowa,  557,  29  N.  W.  621; 
Boothhy  v.  Scales,  27  Wis.  626. 

190  Anson,  Cont.  (4th  Ed.)  303.  See  BEHN  v.  BURNESS,  3  Best  «&  S. 
751;  GLANIIOLM  v.  HAYS,  2  Man.  &  G.  257;  Bowes  v.  Shaud,  2  App. 
Cas.  455;  LoAvber  v.  Bangs,  2  Wall.  728,  17  L.  Ed.  768;  Cleveland  Rolling- 
]Mill  V.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882.  30  L.  Ed.  920;  Filley  v.  Pope, 
115  U.  S.  213,  6  Sup.  Ct.  19,  29  L.  Ed.  372;  DAVISON  v.  YON  LINGEN,  113 
U.  S.  40,  5  Sup.  Ct.  346,  28  L.  Ed.  885;  People  v.  Glann,  70  111.  232;  Tobias 
V.  Lissberger,  105  N.  Y.  404,  12  N.  E.  13,  59  Am.  Rep.  509;  Newhall  v. 
Clark,  3  Cush.  (Mass.)  376,  50  Am.  Dec.  741;  Husted  v.  Craig,  36  N,  Y.  221; 
Ogden  V.  Kirby,  79  111.  555;  Harder  v.  Commissioners,  97  Ind.  455;  Bell  v. 
Hoffman,  92  N.  C.  273;  Salmon  v.  Boykin,  m  Md.  541,  7  Atl.  701.  "A  state- 
ment descriptive  of  the  subject-matter  or  of  some  material  incident,  such  as 
the  time  or  place  of  shipment,  is  ordinarily  to  be  regarded  as  a  warranty, 
in  the  sense  in  wliich  the  term  is  used  hi  insurance  and  maritime  law;  that 
is  to  say,  a  condition  precedent  upon  the  failure  or  nonperformance  of  which 


§§  245-249)  BY   BREACH.  465 

determining  whether  or  not  the  parties  to  a  contract  regarded  a  par- 
ticular term  as  essential.  If  they  did,  the  term  is  a  condition,  and  its 
failure  discharges  the  contract ;  if  they  did  not,  the  term  is  a  warranty, 
and  its  failure  can  only  give  rise  to  an  action  for  such  damages  as 
have  been  sustained  by  the  failure  of  that  particular  term.  Conditions 
are  to  be  distinguished  from  warranties,  although  both  terms  are 
often  loosely,  and  even  interchangeably,  used.  The  word  "war- 
ranty," says  Sir  William  Anson,  is  used  in  a  most  confusing  manner 
and  in  a  great  variety  of  senses,  but  in  its  primary  sense  it  is  a  more 
or  less  unqualified  promise  of  indemnity  against  a  failure  in  the  per- 
formance of  a  term  in  the  contract.  It  is  "an  express  or  implied  state- 
ment J)_f  sottiethino-  which  the  party  undertakes  shall  be  a  part  of  a 
contract,  and  though  part  of  the  contract,  yet  collateral  to  the  express 
object  of  it."  ^^^  If  the  statement  of  a  party  in  a  contract  that  a  cer- 
tain thing  is  true  is  a  condition,  the  other  party  is  discharged  if  it  is 
false;  but  if  the  statement  is  a  warranty,  only,  the  other  party  is  not 
discharged,  but  merely  has  a  right  of  action  for  breach  of  the  war- 
ranty.    A,_^aiTaniy_is_ajnere  promise  to  indemnify.^** 

The  question  whether  a  particular  term  in  a  contract  is  a  condition 
precedent  or  a  warranty  depends  upon  the  construction  of  each  partic- 
ular contract.  The  question  is  to  be  determined  by  the  intention  of 
the  parties,  and  by  the  application  of  common  sense  to  each  particular 
case;  and,  when  the  intention  is  once  discovered,  it  will  control  tech- 
nical forms  of  expression.^®^  As  said  in  a  leading  case :  "Parties 
may  think  some  matter,  apparently  of  very  little  importance,  essential, 
and,  if  they  sufficiently  express  an  intention  to  make  the  literal  ful- 
fillment of  such  a  tiling  a  condition  precedent,  it  will  be  one ;  or  they 
may  think  that  the  performance  of  some  matter,  apparently  of  essen- 
tial importance  and  prima  facie  a  condition  precedent,  is  not  really 
vital,  and  may  be  compensated  for  in  damages,  and,  if  they  sufficiently 
express  such  an  intention,  it  will  not  be  a  condition  precedent."  ^®*  In 
other  words,  the  question  in  each  case,  where  it  is  to  be  determined 
whether  a  breach  of  a  particular  term  operates  as  a  discharge,  is 
whether  or  not  the  breach  goes  to  the  essence  of  the  contract.^®" 

the  party  aggrieved  may  repudiate  the  whole  contract."  NORRINGTON  v. 
WRIGHT,  115  U.  S.  188,  203,  G  Sup.  Ct.  12,  29  L.  Ed.  3GG. 

lai  Chanter  v.  Hopkins,  4  Mees.  &  W.  399.  See,  also,  Dorr  v.  Fisher,  1 
Gush.  (Mass.)  271. 

19  2  Ante,  p.  209. 

183  STAYERS  V.  CURLING,  3  Bing.  N.  C.  355. 

194  BETTINI  T.  GYE,  1  Q.  B.  Div.  183.  And  see  GRAVES  T.  LEGG,  9 
Exch.  709;  BEHN  v.  BURNESS,  3  Best  &  S.  75G;  Watchman  v.  Crook,  5 
(iill.  &  J.  (ild.)  239;  MaiTlaud  Fertilizing  &  Mfg.  Co.  v.  Ivorentz,  44  Md. 
218;    GRANT  v.  JOHNSON,  5  N.  Y.  247;    Knight  v.  Worsted  Co.,  2  Gush. 

19  5  See  note  195  on  following  page. 
Clark  Cont.  (2d  Ed.)— 30 


466  DISCHARGE   OP  CONTRACT.  (Ch.  11 

A  condition  precedent  may  assume  the  form  either  of  a  statement 
or  of  a  promise. 

Waiver  and  Acquiescence  in  Breach  of  Condition. 

A  condition  precedent  may,  in  the  course  of  the  performance  of  the 
contract,  change  its  character,  and  in  effect  cease  to  be  a  condition. 
Acquiescence  in  its  breach  may  in  effect  turn  it  into  a  mere  warranty. 
In  other  words,  a  breach  of  condition,  which  would  discharge  a  party 
if  at  once  treated  by  him  as  a  discharge,  will  not  have  this  effect  if 
he  goes  on  with  the  contract  instead  of  repudiating  it,  and  takes  a 
benefit  under  it;  but  in  such  a  case  he  can  only  recover  his  damages.^®^ 
"Although  conditions  precedent  must  be  performed,  and  a  partial 
performance  is  not  sufiicient,  yet  when  a  contract  has  been  performed 
in  a  substantial  part,  and  the  other  party  has  voluntarily  received  and 
accepted  the  benefit  of  the  part  performance,  knowing  that  the  con- 
tract was  not  being  fully  performed,  the  latter  may  be  thereby  pre- 
cluded from  relying  upon  the  performance  of  the  residue  as  a  condition 
precedent  to  his  liability  to  pay  for  what  he  has  received,  and  may 
be  compelled  to  rely  upon  his  claim  for  damages  in  respect  to  the 
defective  performance."  ^^" 

An  illustration  of  such  a  change  in  the  effect  of  a  condition  is 
afforded  by  a  leading  English  case,  in  which  it  appeared  that  the 
defendant  had  chartered  the  plaintiff's  vessel  for  a  certain  voyage, 
and  promised  to  pay  a  certain  sum  in  full  for  her  use  on  condition  of 
her  taking  a  cargo  of  not  less  than  i,ooo  tons.  The  defendant  had 
the  use  of  the  vessel  as  agreed  upon,  but  it  appeared  that  she  was  not 
capable  of  holding  so  large  a  cargo  as  had  been  made  a  condition  of 
the  contract.  To  an  action  brought  for  nonpayment  of  the  freight, 
the  defendant  pleaded  a  breach  of  this  condition.     The  term  in  the 

(Mass.)  271,  287;  Mill-Dam  Foundry  v.  Hovey,  21  Pick.  (Mass.)  417,  per 
Shaw,  C.  J.     Ante.  p.  451. 

19  5  FREEMAN  v.  TAYLOR,  8  Bing.  124;  FRANKLIN  v.  MILLER,  4 
Adol.  &  E.  599;  TARRABOCHIA  v.  HICKIB,  1  Hurl.  &  N.  ISS;  McAN- 
DREW  V.  CHAPPLE,  L.  R.  1  C.  P.  70G;  BRADFORD  v.  WILLIAMS,  L.  R. 
7  Exch.  259;  Jackson  v.  Insurance  Co.,  L.  R.  10  G.  P.  125;  POUSSARD  v. 
SPIERS,  1  Q.  B.  Div.  410 ;  Rioux  v.  Brick  Co.,  72  Vt.  148.  47  Atl.  40G ;  West 
T.  Beclitel,  125  Mich.  144,  84  N.  W.  60,  51  L.  R.  A.  79  L  As  to  waiver  of  full 
performance.  District  of  Columbia  v.  Iron  Works,  181  U.  S.  453,  21  Sup. 
Ct.  680,  45  L.  Ed.  948. 

196  BEHN  V.  BURNESS,  3  Best  &  S.  756;  GRAVES  v.  LEGG,  9  Exch.  709; 
PUST  V.  DOWIE,  Law  J.  32  Q.  B.  179;  PHILLIPS  &  COLBY  CONST. 
CO.  V.  SEYMOUR,  91  U.  S.  646,  23  L.  Ed.  341;  Wiley  v.  Inhabitants  of  Athol, 
150  INLiss.  426.  23  N.  E.  311,  6  L.  R.  A.  342;  Sykes  v.  City  of  St.  Cloud,  60 
Minn.  442,  62  N.  W.  613;  Yoxmg  Bros.  Mach.  Co.  v.  Young,  111  Mich.  118,  69 
N.  W.  152;  Charley  v.  Potthoflf.  (Wis.)  95  N.  W.  124;  Carter  v.  Scargill,  K 
R.  10  Q.  B.  .564;   Bechtol  v.  Cone.  .52  Md.  698;   Foley  t.  Crow.  37  Md.  51. 

187  Wiley  V.  Inhabitants  of  Athol,  150  Mass.  426,  23  N.  E.  311,  6  L.  R.  A. 
342,  per  Field,  J. 


§§  245-249)  BY  BitEACH.  4G7 

contract  which  has  been  described  was  held  to  have  amounted,  in  its 
inception,  to  a  condition,  and  it  was  said  that  the  defendant,  while  the 
contract  was  still  executory,  might  have  rescinded,  and  refused  to 
put  any  goods  on  board,  but  as  the  contract  had  been  executed,  and  the 
defendant  had  received  a  substantial  part  of  the  consideration,  he 
could  not  rescind  the  contract,  but  must  be  left  to  his  cross  action  for 
damages.^®*- 

A  further  illustration  is  found  in  the  case  of  an  executed  sale. 
We  have  already  seen  that  in  an  executory  sale  an  undertaking  that 
goods  shall  possess  a  certain  quality  is  in  efifect  a  condition,  and  that 
where  goods  are  sold  by  description  it  is  an  implied  condition  that 
they  shall  conform  to  the  description,  and  that  under  some  circum- 
stances other  conditions,  such  as  that  the  goods  shall  be  merchantable, 
will  be  implied. ^^^  In  such  cases,  where  the  goods  tendered  do  not 
fulfill  the  conditions,  it  is  very  generally  held  that  the  buyer  may 
nevertheless  accept  them,  and  in  effect  treat  the  breach  of  condition  as 
a  breach  of  warranty.^""  Some  cases,  however,  draw  a  distinction 
between  conditions  and  warranties,  and  hold  that,  while  an  express 
warranty  survives  acceptance,  a  condition  that  the  goods  shall  be  of 
a  certain  description  does  not  survive,  so  far  as  concerns  visible  de- 
fects, when  the  buyer  had  an  opportunity  to  inspect,  but  that  if,  after 
opportunity  for  inspection,  the  buyer  accepts  the  goods,  he  is  pre- 
cluded from  recovering  damages  for  any  variation  between  the  goods 
as  delivered  and  as  described. ^"^ 

It  seems  that  the  performance  must  be  of  a  substantial  part  of  the 
contract,^"^  and  that  the  acceptance  must  be  under  such  circumstances 


198  PUST  V.  DOWIE,  Law  J.  32  Q.  B.  179. 
189  Ante,  p.  462. 

200  Bagley  v.  Rolling-Mill  Co.  (C.  C.)  21  Fed.  159;  English  v,  Commlpslon 
Co.  (C.  C.)  48  Fed.  197;  Id.,  6  C.  C.  A.  41G,  57  Fed.  451;  Reynolds  v.  Palmer 
(C.  C.)  21  Fed.  433;  Wolcott  v.  iMount,  3()  N.  J.  Law,  202,  13  Am.  Rep.  438; 
Holloway  v.  Jacoby,  120  Pa.  583,  15  Atl.  487,  6  Am.  St.  Rep.  737;  I^wis  v. 
Rountree,  78  N.  C.  323;  Eagan  Co.  v.  Johnson,  82  Ala.  233.  2  South.  302; 
Dayton  v.  Hooglund,  39  Ohio  St.  G71 ;  Morse  v.  Moore,  S3  Me.  473.  22  Atl. 
362,  13  L.  R.  A.  224,  23  Am.  St.  Rep.  783;  Tacoma  Coal  Co.  v.  Bradley,  2 
Wash.  St.  600,  27  Pac.  454.  See.  also,  Marsh  v.  ISIcPherson,  105  U.  S.  709,  26 
L.  Ed.  1139. 

201  Haase  v.  Nonnemacher,  21  Minn.  486;  Maxwell  v.  Lee,  34  Minn.  511, 
27  N.  W.  196;  Thompson  v.  Libby,  35  Minn.  443.  29  N.  W.  150  (implied  condi- 
tion of  merchantableuess  does  not  survive  acceptjinee  In  respect  to  visible  de- 
fects); Comstock  Y.  Sanger,  51  Mich.  497,  16  N.  W.  872;  McClure  v.  Jef- 
ferson, 85  Wis.  208.  .54  N.  W.  777.  This  rule  prevails  in  New  York,  Coplay 
Iron  Co.  v.  Fope,  108  N.  Y.  232,  15  N.  E.  335;  except  as  to  a  warranty  that 
goods  shall  conform  to  sample,  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  29  N. 
E.  1006. 

20i  Anson,  Gout  (4th  Ed.)  308,  citing  ELLEN  v.  TOPP,  6  Exch.  424. 


468  DISCHARGE   OF  CONTRACT.  (CL.  1  1 

as  to  show  that  the  party  accepting  knew,  or  onght  to  have  known, 
that  the  contract  was  not  being  fully  per  formed.  ^'^^ 

Breach  Caused  by  the  Other  Party. 

Though  performance  by  one  party  of  a  part  or  the  whole  of  his 
promise  may  be  a  condition  precedent  to  the  liability  of  the  other  party 
t-o  perform,  still  his  failure  to  perform  will  not  discharge  the  latter,  if 
the  latter  prevented  performance.  In  such  a  case  the  party  so  pre- 
vented is  discharged  from  further  performance,  and  may  recover 
damages  for  the  breach  or  recover  on  the  quantum  meruit  for  his 
part  performance. '^"^ 

Failure  of  Consideration. 

"Strictly  speaking,  there  can  be  no  such  thing  as  a  failure  of  con- 
sideration. Either  the  promisor  receives  the  consideration  he  bar- 
gained for,  or  he  does  not.  If  he  does  not  receive  the  consideration, 
there  is  no  contract;  if  he  does  receive  the  consideration,  there  can 
be  no  failure  of  consideration  thereafter."  ^os  The  term  is,  however, 
frequently  used  to  express  the  situation  which  arises  where  the  prom- 
isee fails  wholly  or  partly  to  perform  a  promise  which  was  the  con- 
sideration of  the  promise  of  the  promisor.  Some  cases  usually  con- 
sidered under  the  head  of  failure  of  consideration  may  be  mentioned 
here. 

As  we  have  seen,  where  there  is  a  contract  for  the  sale  of  goods 
by  description  it  is  an  implied  condition  of  the  contract  that  the  goods 
shall  correspond  to  the  description.  By  accepting  the  goods  tendered, 
indeed,  the  buyer  is  ordinarily  held  to  have  waived  his  right  to  rely 
on  the  condition,  and  the  condition,  in  effect,  becomes  a  warranty.^"' 
Where,  however,  a  thing  is  sold  as  being  an  article  of  a  specific  descrip- 
tion, and  from  latent  defect,  unknown  to  the  buyer,  it  is  in  substance 
not  an  article  of  that  description,  but  an  article  of  no  value,  the  buyer 
may  rescind  the  sale  notwithstanding  acceptance,  and  may  defend  an 
action  for  the  price  or  may  recover  the  price  if  he  has  paid  it.  In 
such  cases  it  is  commonly  said  that  there  has  been  a  total  failure  of 
consideration.     Such  a  state  of  facts  occurs  where  the  thing  sold  is 

208  Wiley  v.  Inhabitants  of  Athol,  150  Mass.  42G,  23  N.  E.  311,  6  Lt  R.  A. 
342,  per  Field,  J. 

204  Ante,  p.  444;  UNITED  STATES  v.  BEHAN,  110  U.  S.  338,  4  Sup. 
Ct.  81,  28  L.  Ed.  168;  HINCKLEY  v.  STEEL  CO..  121  U.  S.  2G4,  7  Sup.  Ot.  875. 
30  L.  Ed.  967 ;  Hood  v.  Exploration  Co.  (C.  C.)  100  Fed.  408 ;  Mooney  v.  Iron 
Co.,  82  Mich.  263,  46  N.  W.  376;  Caldwell  v.  Myers,  2  S.  D.  506,  51  N.  W. 
210;  Thompson  v.  Gaffey,  52  Neb.  317,  72  N.  W.  314;  Wellston  Coal  Co.  v. 
Paper  Co.,  57  Ohio  St.  182,  48  N.  E.  888;  Southern  Pac.  Co.  v.  Well  Works. 
172  111.  9,  49  N.  E.  575;  San  Francisco  Bridge  Co.  v.  Improvement  Ca,  119 
Gal.  272.  51  Pac.  335. 

20 c  iTarriman,  Cont.  §  524.     See  9  Cyc.  Law  &  Proc.  369. 

2oa  Ante,  p.  467. 


§§  24:0-2-^9)  BY   BREACH.  4G9 

a  bill  or  note  or  other  security,  and  it  turns  out  to  be  invalid  because 
of  forgery -°^  or  for  other  causes;^"®  the  instrument  thus  being  not 
what  it  purports  to  be,  but  a  mere  worthless  piece  of  paper.  So  in  the 
sale  of  a  patent,  if  the  patent  is  void.^"*"  But  though  the  thing  sold 
thus  proves  to  be  worthless,  if  the  buyer  assumed  the  risk  of  its 
validity,  and  consequently  obtained  the  identical  thing  which  he  in- 
tended to  buy,  there  is  no  failure  of  consideration.^^" 

Where  on  the  sale  of  personal  property  the  buyer  accepts  the  goods, 
he  may  still  bring  an  action  for  damages  if  the  goods  are  inferior  in 
quality  to  that  warranted ;  or,  instead  of  bringing  an  action  for  dam- 
ages, he  may  wait  till  he  is  sued  for  the  price,  and  then  set  up  the 
breach  of  warranty  in  diminution  of  the  price  pro  tanto  as  a  defense."^ 
And  to-day  in  most  states  such  damages  may  be  set  up  by  way  of 
defense  in  an  action  on  a  note  given  for  the  price. ^^^  In  such  cases, 
where  the  article  sold  by  reason  of  failure  to  conform  to  the  warranty 

207  JONES  V.  RYDE,  5  Taimt.  488;  GURNEY  v.  WOMEKSI.EY,  4  El. 
&  Bl.  133;  Terry  v.  Bissell,  26  Conn.  23;  Aldrich  v.  Jackson,  5  R.  I.  218; 
Merriam  v.  Wolcott,  3  Allen  (Mass.)  258,  80  Am.  Dec.  69.  See,  also,  Whitney 
V.  Bank.  45  N.  Y.  303;    Bell  v.  Dags,  60  N.  Y.  528. 

208  Burchfield  v.  Moore,  2  El.  &  Bl.  683  (material  alteration) ;  Gompertz  v. 
Bartlett,  2  El.  &  Bl.  849,  23  Law  J.  Q.  B.  05  (a  bill  of  exchange  purporting  to 
be  a  foreign  bill,  which  tm-ued  out  to  be  a  domestic  bill,  and  invalid  because 
unstamped);  WOOD  v.  SHELDON,  42  N.  J.  L.  421,  36  Am.  Rep.  523  (scrip 
illegally  and  fraudulently  issued);  Paul  v.  City  of  Kenosha,  22  Wis.  266,  94 
Am.  Dec.  598;  Meyer  v.  Richards,  103  U.  S.  385,  16  Sup.  Ct.  1148,  41  L.  Ed. 
199  (bond  stricken  with  nullity  by  constitutional  provision  adopted  after  act 
authorizing  issue). 

200  Nash  v.  Lull,  102  Mass.  60,  3  Am.  Rep.  435;  Harlow  v.  Putnam,  124 
Mass.  553;  Shepherd  v.  Jenkins,  73  Mo.  510;  Green  v.  Stuart,  7  Baxt.  (Tenn.) 
418;  Herzog  v.  Heyman,  151  N.  Y.  587,  45  N.  E.  1127,  56  Am.  St.  Rep.  646. 
Cf.  Chemical  Electric  Light  &  Power  Co.  v.  Howard,  148  Mass.  352,  20  N.  E. 
92,  2  L.  R.  A.  168;  Gloucester  Isin-Glass  &  Glue  Co.  v.  Cement  Co.,  154 
Mass.  92,  27  N.  E.  1005,  2  L.  R.  A.  563,  26  Am.  St.  Rep.  214.- 

210  Lambert  v.  Heath,  15  Mees.  &  W.  487;  Bryant  v.  Pember,  45  Vt  487; 
Blattenberger  v.  Holman,  103  Pa.  555;  Neidefer  v.  Chastain,  71  Ind.  363, 
36  Am.  Rep.  198;  WHEAT  v.  CROSS,  31  Md.  99,  1  Am.  Rep.  28;  Hunting 
v.  Downer,  151  Mass.  275,  23  N.  E.  832.  On  this  principle,  it  has  been  held 
that  where  bonds  are  sold  which  are  invalid  because  the  consideration  has 
not  power  to  issue  them,  or  failed  to  comply  with  the  law  in  their  issuance, 
the  purchaser  is  liable  on  his  promise  to  pay.  Otis  v.  CulUun,  92  U.  S.  447. 
23  L.  Ed.  496;  Harvey  v.  Dale.  96  Cal.  160,  31  Pac.  14;  Sutro  v.  Rhodes,  92 
Cal.  117,  28  Pac.  98.     But  see  Hurd  v.  Hall,  12  Wis.  136. 

211  Mondel  v.  Steel,  8  Mees.  &  W.  858;  Lyon  v.  Bertram,  20  How.  149,  154, 
15  L.  Ed.  847;  Bradley  v.  Rea,  14  Allen  (Mass.)  20;  Dailey  v.  Green,  15  Pa. 
118,  126;  Dayton  v.  Hooglund,  39  Ohio  St.  671;  Underwood  v.  Wolf,  131 
111.  425,  23  N.  E.  598^  19  Am.  St.  Rep.  40;  Morehouse  v.  Comstock.  42  Wis. 
620 ;  Polhemus  v.  Heiraan,  45  Cal.  573 ;  Breen  v.  INIoran,  51  Minn.  525,  53  N. 
W.  755;   Central  Trust  Co.  v.  Manufacturing  Co.,  77  Md.  202,  26  Atl.  493. 

212  Withers  v.  Greene.  9  How.  213,  13  L.  Ed.  109;  Ruff  v.  Jan-ett,  04  111. 
475;   Wentworth  v.  Dows,  117  Mass.  14,  per  Colt,  J.;    Wright  v.  Davenport, 


470  DISCHARGE   OF   CONTRACT.  (Ch.  11 

.i,s  wholly  worthless,  so  that  the  breach  of  warranty  is  a  complete 
defense,  it  is  often  said  that  there  is  an  entire  failure  of  considera- 
tion ;^^^  and  if  the  damages  recoverable  for  the  breach  of  warranty 
would  simply  reduce  the  amount  of  the  recovery,  it  is  often  said  that 
there  has  been  a  partial  failure  of  consideration.^^* 

Again,  upon  a  sale  of  personal  property,  the  seller  impliedly  war- 
rants his  title  to  the  goods  sold,  unless  the  circumstances  are  such 
as  to  show  that  the  seller  is  transferring  only  such  property  as  he  had 
in  the  goods.^^^  Where  the  circumstances  are  such  that  a  warranty 
of  title  is  to  be  implied,  if  it  turns  out  that  the  seller  was  not  in  fact 
the  owner,  it  is  said  that  the  consideration  fails,  and  in  such  case  the 
buyer  can  defend  an  action  for  the  price,  or  recover  it  if  he  has 
paid  it.^^^ 

Where  the  subject-matter  of  the  sale  is  land,  and  it  turns  out  that 
the  vendor  had  no  title,  the  purchaser  may  interpose  the  failure  of 
title  as  a  defense  in  an  action  for  the  price  or  upon  notes  given  there- 
for.-^ ^  In  the  case  of  the  sale  of  land  with  covenants  by  the  vendor, 
questions  have  arisen  as  to  whether  the  failure  of  the  title  amounts  to 
a  total  failure  of  consideration.  In  a  Massachusetts  case  a  note  had 
been  given  in  consideration  of  a  conveyance  of  land  by  deed,  with 
the  usual  covenants  of  seisin  and  warranty,  and  the  title  to  the  land 
failed  entirely.  The  question  raised  was  whether  that  want  of  title 
was  an  entire  want  of  consideration  for  the  note,  so  as  to  render  it 
nudum  pactum,  or  whether  the  covenants  in  the  deed  were  of  them- 
selves a  sufficient  consideration.  It  was  held,  contrary  to  a  decision 
in  Maine, ^^^  that  the  total  failure  of  title  was  a  total  failure  of  consid- 
eration, and  that  the  note  was  therefore  void.  "The  promise  is  not 
made  for  a  promise,"  it  was  said,  "but  for  the  land.     The  moving  cause 

44  Tex.  164;  Bayview  Brewing  Co.  v,  Techlenberg,  19  Wash.  4G9,  53  Pac. 
724. 

213  Thompson  v.  Manufacturing  Co.,  29  Kan.  476;  Toledo  Sav.  Bank  v. 
Kathmann,  78  Iowa,  75G,  43  N.  W.  193;  Aultman,  &  Taylor  Co.  v.  Trainer, 
80  Iowa,  451,  45  N.  W.  757;    Brown  v.  Weldou,  99  ]Mo.  564,  13  S.  W.  342. 

214  Stevens  v.  Johnson,  28  Minn.  172,  9  N.  W.  077;  Nichols  &  Shepard  Co. 
V.  Soderquist,  77  Minn.  509;  Euss  Lumber  &  Mill  Co.  v.  Water  Co.,  120  Cal. 
521,  52  Pac.  995,  65  Am.  St.  Rep.  186. 

215  Benj.  Sales  (6th  Am.  Ed.)  §  639;    Tiffany,  Sales,  165. 
216EICHHOLZ  V.  BANNISTER,  17  C.  B.  (N.  S.)  708;    Chenault  v.  Bush, 

84  Ky.  528,  2  S.  W.  160;  Flandrow  v.  Hammond,  148  N.  Y.  129,  42  N.  E.  511. 
And  see  Gould  v.  Bourgeois,  51  N.  J.  Law,  361,  18  Atl.  64. 

217  Mui^hy  V.  .Tones,  7  Ind.  529;  Anderson  v.  Armstead,  69  111.  4.52;  Fer- 
guson V.  Teei,  82  Va.  690 ;  Curtis  v.  Clark,  133  Mass.  509 ;  Baird  v.  Laevison, 
91  Ky.  204,  15  S.  W.  252 ;  Redding  v.  Lamb,  81  Mich.  318,  45  N.  W.  997 ;  Hall 
V.  McArthur,  82  Ga.  572,  9  S.  E.  534. 

2i8.Tenness  v.  Parker,  24  Me.  280;  Lloyd  v.  .Tewell,  1  Greenl.  (:Me.)  360, 
10  Am.  Dec.  73.  And  see  Black  v.  Walker,  98  Ga.  31,  20  S.  E.  477;  Bennett 
V.  Pierce,  45  W.  Va.  654,  31  S.  E.  972. 


§§  245-249)  BY   BKKACH.  471 

is  the  estate,  and,  if  that  fails  to  pass,  the  promise  is  a  mere  nudum 
pactum."  '^^ 

Same — Subsequent  Failure  of  Executed  Consideration. 

If  the  promisor  receives  a  consideration  for  his  promise,  the  fact 
that  it  subsequently  diminishes  in  value,  or  becomes  worthless,  does 
not  release  him  from  liability  on  his  promise.^^**  The  transfer  and 
delivery  of  a  note,  for  instance,  by  the  payee  to  the  maker  of  another 
note,  in  exchange  therefor,  is  a  valuable  consideration  for  the  latter 
note,  and  the  fact  that  the  former  note  subsequently  becomes  worthless 
does  not  constitute  a  failure  of  consideration.-^^  So,  if  a  patent  is 
sold,  the  fact  that  it  afterwards  becomes  valueless  because  of  improve- 
ments does  not  release  the  purchaser  from  liability  for  the  purchase 
money.^-* 

Recovery  of  Money  Paid, 

Ordinarily,  if  a  person  voluntarily  pays  another  money,  he  cannot 
maintain  an  action  to  recover  it  back.  This  rule,  however,  does  not 
apply  where  money  is  paid  under  a  contract,  and  the  consideration 
fails.     The  money  may  be  recovered  back  in  such  a  case.^^^ 

210  Kice  V.  Goddai'd,  14  Pick.  (Mass.)  293.  And  see  Frisbee  v.  Hoffnagle, 
11  Johns.  (N.  Y.)  50;  McAllister  v.  Keab,  4  Wend.  (N.  Y.)  483;  Durment  v. 
Tuttle,  50  Minn.  426,  52  N.  W.  909 ;  Steinhauer  v.  Witman,  1  Serg.  &  R.  (Pa.) 
447;  Gray  v.  Handkinson's  Heirs,  1  Bay  (S.  C.)  278;  Bell's  Adm'r  v.  Hug- 
gins'  Adm'rs,  Id.  327;  Trask  v.  Vinson,  20  Pick.  (Mass.)  110;  Chandler  v. 
Marsh,  3  Vt.  1G2;  Cook  v.  Mix,  11  Conn.  432;  Tillotson  v.  Grapes,  4  N.  H. 
448 ;  Tyler  v.  Young,  2  Scam.  (111.)  447,  35  Am.  Dec.  116 ;  Davis  v.  McVickers, 
11  111.  327.  But  see  Sunderland  v.  Bell,  39  Kan.  21,  17  Pac.  600;  McLeod  v. 
Barnum,  131  Cal.  605,  63  Pac.  924. 

220  Rice  V.  Grange,  131  N.  Y.  149,  30  N.  E.  46;  Harmon  v.  Bird,  22 
Wend.  (N.  Y.)  113;  Perry  v.  Buckman,  33  Vt.  7;  Potter  v.  Earnest,  45  Ind. 
416 ;  Smock  v.  Pierson,  68  Ind.  405,  34  Am.  Rep.  269 ;  Blackman  v.  Dowling, 
63  Ala.  304 ;  Byrne  v.  Cummings,  41  Miss.  192 ;  Daniel  v.  Tarver,  70  Ga.  203 ; 
Dowdy  V.  McLellan,  52  Ga.  408;  Bean  v.  Proseus  (Cal.)  31  Pac.  49;  Topp  v. 
Wliite,  12  Heisk.  (Tenn.)  165. 

221  Rice  V.  Grange,  131  N.  Y.  149,  30  N.  E.  46. 
2  22  Harmon  v.  Bird,  22  Wend.  (N.  Y.)  113. 

223  GILES  V.  EDWARDS,  7  T.  R.  181;  CLAFLIN  v.  GODFREY,  21  Pick. 
(Mass.)  1;  Steele  v.  Hobbs,  16  111.  59;  Darst  v.  Brockway,  11  Ohio,  462;  Foss 
T.  Richardson,  15  Gray.  (Mass.)  303 ;  Chapman  v.  City  of  Brooklyn,  40  N.  Y. 
372;  Leach  v.  Tilton.  40  N.  H.  473;  Richter  v.  Stock  Co.,  129  Cal.  367,  62  Pac. 
39.  And  see  cases  cited  supra,  notes  207-209.  The  obligation  to  repay  is  quasi 
contractual. 


472  DISCHARGE   OF  CONTRACT.  (Ch.  11 


DISCHARGE  BY  IMPOSSIBILITY  OF  PERFORMANCE. 

250.    Impossibility  of  performance   arising   subsequent  to  the  forma- 
tion of  a  contract  does  not  discharge  the  promisor,  even  though 
he  xvBS  not  in  fault,  except — 
EXCEPTIONS— (a)    'Where  the  impossibility  is  created  by  law. 
(b)    Where  the   subject-matter    is    destroyed,   the    rule    being    that, 
\(rhere  the   continued   existence   of  a  speci^c   thing  is  essential 
to  the  performance  of  a  contract,  its  destruction,  from  no  de- 
fault of  either  party,  operates  as  a  discharge. 
■  (c)    In  case  of  incapacity  for  personal   services,  the  rule  being  that 
a  contract  -which  has  for  its  object  the  rendering  of  personal 
services  is  discharged  by  the  death  or  incapacitating  illness  of 
the  promisor.-24 

Obvious  physical  impossibility,  or  legal  impossibility,  which  is  ap- 
parent upon  the  face  of  the  promise,  avoids  the  contract.  There  is 
no  question  of  discharge,  for  there  has  in  fact  never  been  a  contract. 
The  reason  for  this  is,  as  we  have  seen,  that  the  promise  is  an  unreal 
consideration  for  any  promise  given  in  return. ^^'^ 

Again,  impossibihty  which  arises  from  the  nonexistence  of  the 
subject-matter  of  the  contract  avoids  it.-^''  Here,  also,  there  is  no 
question  of  discharge  from  a  contract.  The  question  is  one  of  avoid- 
ance of  the  contract,  and  relates  to  its  formation. 

We  are  here  to  deal  with  those  cases  in  which  a  valid  contract  has 
been  made,  but  has  become  impossible  of  performance  because  of 
facts  and  circumstances  arising  subsequent  to  its  formation.  The 
general  rule  is  that  such  impossibility,  even  though  it  arises  without 
any  fault  on  the  part  of  the  promisor,  does  not  discharge  him  from 
his  liability  under  the  contract.  Of  course  he  cannot  perform  his 
promise,  as  that  has  become  impossible;  but  this  is  no  excuse,  and  he 
may  be  held  liable  as  for  failure  to  perform.  As  we  have  seen  in 
speaking  of  conditions  subsequent,  the  promisor  may,  by  the  terms 
of  the  contract,  make  the  performance  of  his  promise  conditional  upon 
its  continued  possibility,  and  if  he  does  so  the  promisee  takes  the  risk, 
and  must  bear  the  loss  if  performance  becomes  impossible.  If,  how- 
ever, the  promisor  makes  his  promise  unconditionally,  it  is  his  own 
lookout,  and  he  takes  the  risk  of  being  held  liable,  even  though  per- 
formance becomes  impossible  by  reason  of  circumstances  beyond  his 
control. ^^^     "Where  the  contract  is  to  do  a  thing  which  is  possible 

224  Anson,  Cont.  (4th  Ed.)  320-325. 

220  Ante,  p.  134.  22fi  Ante,   p.  201. 

227  Faradiue  v.  Jane.  Aleyn,  2(5;  Ford  v.  Cotesworth,  L.  R.  4  Q.  B.  127; 
Kearon  v.  Pearson,  7  Hurl.  &  N.  35(5;  The  Harriman,  9  Wall.  IGl,  19  L.  Ed. 
029;  Jones  v.  U.  S.,  90  U.  S.  24,  24  L.  Ed.  044;  JACKSONVILLE,  M.,  P. 
P.Y.  &  NAV.  CO.  V.  HOOPER,  100  U.  S.  514,  10  Snp.  Ct.  379,  40  L.  Ed.  515; 
BEEBE  V.  JOHNSON,  19  Wend.  (N.  Y.)  500,  32  Am.  Dec.  51S;    Harmony  v. 


§  250)  BY    IMPOSSIBILITY    OF   PEKl'OUMANCE.  473 

in  itself,  the  performance  is  not  excused  by  the  occurrence  of  an  inev- 
itable accident  or  other  contingency,  although  it  was  not  foreseen  by 
the  party,  nor  was  within  his  control."  ^^^ 

In  an  old  case,  in  which  the  plaintiff  sued  for  rent  due  upon  a  lease, 
the  defendant  pleaded  that  a  foreign  prince  had  invaded  the  realm  with 
a  hostile  army,  and  expelled  defendant  from  the  premises  demised, 
whereby  he  could  not  take  the  profits  out  of. which  the  rent  should 
have  come.  The  court  held  that  this  was  no  excuse,  "and  this  differ- 
ence was  taken :  that  where  the  law  creates  a  duty  or  charge,  and  the 
party  is  disabled  to  perform  it  without  any  default  in  him,  and  hath 
no  remedy  over,  there  the  law  will  excuse  him.  As  in  the  case  of 
waste,  if  a  house  be  destroyed  by  tempest,  or  by  enemies,  the  lessee  is 
excused.  *  *  *  But  when  the  party,  by  his  own  contract,  creates 
a  duty  or  charge  upon  himself,  he  is  bound  to  make  it  good,  if  he  may, 
notwithstanding  any  accident  by  inevitable  necessity,  because  he  might 

Bingham,  12  N.  Y.  99,  62  Am.  Dec.  142;  Booth  v.  Mill  Co.,  60  N.  Y.  487; 
STEES  V.  LEONARD,  20  Minn.  494  (Gil.  448);  Harrison  v.  Railway  Co., 
74  Mo.  364,  41  Am.  Rep.  318;  School  Dist.  No.  1  v.  Dauchy,  25  Conn.  530, 
68  Am.  Dec.  371;  Adams  v.  Nichols,  19  Pick.  (Mass.)  275;  Eugster  v.  West, 
30  La.  Ann.  119,  48  Am.  Rep.  232;  School  Trustees  v.  Bennett,  27  N.  J.  Law, 
513,  72  Am.  Dec.  373;  SUMMERS  v.  HIBBARD,  SPENCER,  BARTLETT 
&  CO.,  153  111.  102,  38  N.  E.  899,  46  Am,  St.  Rep.  872;  Middlesex  Water  Co. 
V.  Knappmann  Whiting  Co.,  64  N.  J.  Law,  240,  45  Atl.  093,  49  L.  R.  A.  572, 
81  Am.  St.  Rep.  467;  Reichenbach  v.  Sage,  13  Wash.  364,  43  Pac.  354,  52  Am. 
St.  Rep.  51.  Where  a  person  has  contracted  to  build  a  house,  he  is  neither 
excused  from  performance,  nor  entitled  to  recover  for  what  he  has  done,  by 
the  fact  that  the  house  is  destroyed  by  lire  or  other  cause  beyond  his  control, 
before  its  completion  and  acceptance  by  the  owner.  School  Trustees  v. 
Bennett,  27  N.  .T.  Law,  513,  72  Am.  Dec.  373;  Lawing  v.  Rintles,  97  N.  C. 
350,  2  S.  E.  252 ;  DERMOTT  v.  JONES,  2  Wall.  1,  17  L.  Ed.  762 ;  Fildew  v. 
Besley,  42  Mich.  100,  3  N.  W.  278,  36  Am.  Rep.  433;  Vogt  v.  Hecker  (Wis.) 
95  N.  W.  90.  Most  courts  hold  that,  where  a  person  has  agreed  to  make  re- 
pairs or  do  other  work  on  a  specific  building  or  chattel,  its  destruction  before 
the  work  is  finished  will  discharge  the  contract,  and  the  workman  may  re- 
cover for  what  he  has  done,  and  it  is  immaterial  that  the  work  was  only 
to  be  paid  for  on  completion.  See  Whelan  v.  Clock  Co.,  97  N.  Y.  293;  Hin- 
drey  v.  Williams,  9  Colo.  371,  12  Pac.  436;  BUTTERFIELD  v.  BYRON, 
153  Mass.  517,  27  N.  E.  667,  12  L.  R.  A.  571,  25  Am.  St.  Rep.  654;  CLEARY 
v.  SOIIIER,  120  Mass.  210;  Cook  v.  McCabe,  53  Wis.  250.  10  N.  W.  507,  40 
Am.  Rep.  765;  Lord  v.  Wheeler,  1  Gray  (Mass.)  282;  WELLS  v.  CALNAN, 
107  Mass.  514,  9  Am.  Rep.  65;  Haynes  \.  Baptist  Church.  88  Mo.  2S5,  57 
Am.  Rep.  413;  Weis  v.  Devlin,  67  Tex.  507,  3  S.  W.  726,  60  Am.  Rep.  38; 
Hysell  V.  Manufacturing  Co.,  46  W.  Va.  158,  33  S.  E.  95;  ANGUS  v. 
SCULLY,  176  Mass.  357,  57  N.  E.  674;  49  L.  R.  A.  562,  79  Am.  St.  Rep.  318; 
Hayes  v.  Gross,  9  App.  Div.  12,  40  N.  Y.  Supp.  1098,  allirmed,  162  N.  Y.  610, 
57  N.  E.  1112.  But  see  APPLEBY  v.  MYERS,  L.  R.  2  C.  P.  651;  BRUMBY 
v.  SMITH,  3  Ala.  123;  SIEGEL,  COOPER  &  CO.  v.  EATON  &  PRINCE 
CO.,  105  111.  550,  46  N.  E.  449 ;  Huyett  &  Smith  Mfg.  Co.  v.  Chicago  Edison 
Co.,  167  111.  233,  47  N.  E.  384,  59  Am.  St.  Rep.  272. 
228  Jones  V.  U.  S.,  96  U.  S.  24,  24  L.  Ed.  644. 


•474  DISCHARGE   OF   CONTRACT.  (Ch.  11 

have  provided  against  it  by  his  contract.  And  therefore,  if  the  lessee 
covenant  to  repair  a  house,  though  it  be  burnt  by  lightning,  or  thrown 
down  by  enemies,  yet  he  ought  to  repair  it."  -^^ 

Exceptions  to  the  Rule. 

The  exceptions  to  the  rule  must  be  distinguished  from  the  cases  in 
which  the  act  of  God  is  said  to  excuse  from  nonperformance  of  a  con- 
tract. There  are,  as  we  have  seen,  certain  contracts  into  which  the 
act  of  God  is  introduced  as  an  express,  or,  by  custom,  an  implied,  con- 
dition subsequent  absolving  the  promisor;  but  there  are  forms  of  im- 
possibility which  are  said  to  excuse  from  performance  because  "they 
are  not  within  the  contract," — that  is  to  say,  that  neither  party  can 
reasonably  be  supposed  to  have  contemplated  their  occurrence,  so  that 
the  promisor  neither  accepts  them  specifically  nor  promises  uncon- 
ditionally in  respect  of  them.^'** 

Same — Legal  Impossibility. 

Legal  impossibility  arising  from  a  change  in  the  law  ^^^  exonerates 
the  promisor."-  It  was  so  held  in  an  action  on  a  covenant  in  a  lease 
from  the  defendant  to  the  plaintiff,  by  which  the  defendant  agreed 
that  neither  he  "nor  his  assigns"  would,  during  the  term,  erect  any 
but  ornamental  buildings  on  adjoining  land,  which  had  been  retained 
by  the  defendant,  but  which  was  afterwards  taken  by  a  railroad  com- 
pany under  legislative  authority,  and  used  for  the  erection  of  a  station. 
"The  legislature,"  it  was  said,  "by  compelling  him  to  part  w^ith  his 
land  to  a  railway  company,  whom  he  could  not  bind  by  any  stipula- 
tion, as  he  could  an  assignee  chosen  by  himself,  has  created  a  new  kind 

220  Paradine  v.  Jane,  Aleyn,  26. 

230  BAILY  V.  DE  CRESPIGNY,  L.  E.  4  Q.  B.,  at  page  185.  If  the  im- 
possibility is  caused  by  the  act  of  the  promisor,  it  does  not  excuse  failure  to 
perform.  Ante,  p.  448.  The  exceptions  do  not  apply  where  a  person  has  an 
option  to  perform  his  contract  in  either  of  two  ways,  and  it  becomes  impos- 
sible of  performance  in  one  of  the  ways  only'.  In  such  a  case  he  must  per- 
form in  the  other  way.  State  v.  Worthiugton's  Es'rs,  7  Ohio,  171,  pt.  1; 
DRAKE  V.  WHITE,  117  Mass.  10;  Jacquinet  v.  Boutron.  19  La.  Ann.  30; 
Board  of  Education  v.  Townsend,  63  Ohio  St.  514,  59  N.  E.  223,  52  L  R  A. 
868. 

231  Otherwise  if  impossibility  is  created  by  foreign  law.  Bunker  v.  Hodg- 
son, 3  Maule  &  S.  267;  Tweedie  Trading  Co.  v.  James  P.  McDonald  Co.  (D. 
C.)  114  Fed.  985.     Cf.  O'Neil  v.  Armsti-oug  (1895)  2  Q.  B.  70. 

232  BAILY  V.  DE  CRESPIGNY,  L.  R.  4  Q.  B.  180;  CORDES  V.  MILLER. 
39  Mich.  581,  33  Am.  Rep.  430;  SEMMES  v.  INSURANCE  CO.,  13  AVall.  158, 
20  L.  Ed.  490;  Brick  Presbyterian  Church  v.  City  of  New  York,  5  Cow. 
(N.  Y.)  538;  JONES  v.  JUDD,  4  N.  Y.  411;  Mississippi  &  T.  R.  Co.  v. 
Green,  9  Heisk.  (Tenn.)  588.  And  see  Buffalo  E.  S.  R.  Co.  v.  Railroad  Co., 
Ill  N.  Y.  132,  19  N.  E.  63,  2  L.  R.  A.  284.  But  there  is  no  discharge  when  the 
law  merely  makes  performance  more  bm-densome,  though  not  impossible. 
Baker  v.  Johnson,  42  N.  Y.  126;  Newport  News  &  M.  V.  Co.  v.  McDonald 
Brick  Co.'s  Assignee,  109  Ky.  408,  59  S.  W.  332. 


§  250)  BY    IMPOSSIBILITY    OF    PERFORMANCE.  475 

of  assign,  such  as  was  not  in  the  contemplation  of  the  parties  when  the 
contract  was  entered  into.  To  hold  the  defendant  responsible  for  the 
acts  of  such  an  assignee  is  to  make  an  entirely  new  contract  for  the 
parties."  -^^  This  exception  does  not  apply  to  the  full  extent  where 
the  impossibility  created  by  a  change  in  the  law  is  only  temporary. 
In  such  a  case  liability  to  perform  is  only  suspended,  and  the  promise 
must  be  performed  when  the  impossibility  ceases.^^* 

Legal  impossibility  may  arise  as  well  by  action  of  the  courts  or  by 
the  executive  as  of  the  legislature,  and  in  all  such  cases  the  contract 
is  discharged.  Thus,  where  an  agent  was  under  employment  by  an 
insurance  company,  and  before  expiration  of  the  term  the  company 
was  enjoined  from  doing  business,  and  a  receiver  was  appointed, 
at  the  instance  of  the  state,  the  contract  was  discharged. ^^'^  So,  where 
a  servant  agreed  with  his  master  that  if  he  left  without  giving  two 
weeks'  notice  he  should  receive  nothing  for  wages  due,  and  was 
arrested  and  imprisoned  for  crime,  it  was  held  that  he  could  never- 
theless recover.^^®  And  where  performance  of  a  charter  party  for 
loading  a  cargo  at  a  foreign  port  was  prevented  by  a  declaration  of 
war  rendering  performance  impossible  without  illegal  trading  with 
the  enemy,  the  contract  was  discharged.^ ^^ 

Same — Destruction  of  the  Subject-Matter. 

Where  the  continued  existence  of  a  specific  thing  is  essential  to  the 
performance  of  the  contract,  its  destruction  from  no  fault  of  either 
party  operates  as  a  discharge.^^*  A  leading  case  on  this  subject  was 
one  in  which  the  defendant  had  agreed  to  let  the  plaintifif  have  the 
use  of  a  music  hall  for  the  purpose  of  giving  concerts  upon  certain 
days.  Before  the  days  of  performance  arrived  the  hall  was  destroyed 
by  fire,  and  the  plaintiff  sued  the  defendant  for  losses  arising  from  the 
consequent  breach  of  contract.  The  court  held  that,  in  the  absence 
of  any  express  stipulation  on  the  matter,  the  parties  must  be  taken 
"to  have  contemplated  the  continuing  existence  as  the  foundation  of 
what  was  to  be  done,"  and  that,  therefore,  "in  the  absence  of  any 

23  3  BAILY  V.  DE  CRESPIGNY,  L.  R.  4  Q.  B.  180. 

234  Hadley  v.  Clarke,  8  Term.  R.  259;   Baylies  v.  Fettyplaee,  7  Mass.  325. 

235rEOPLE  V.  INSURANCE  CO.,  91  N.  Y.  174.  To  the  same  effect, 
where  performance  is  prevented  by  appointment  of  receiver  and  injunction. 
Malcomson  v.  Wappoo  Mills  (C.  C.)  88  Fed.  680;  Burkhardt  v.  School  Tp.. 
9  S.  D.  315,  69  N.  W.  16.  Contra,  Spader  v.  Manufacturing  Co.,  47  N.  J. 
Eq.  18,  20  Atl.  378;    State  v.  Railroad  Co.,  61  Neb.  545,  85  N.  W.  556, 

236  HUGHES  V.  WAMSUTTA  MILLS,  11  Alien  (Mass.)  201.  But  seo 
Leopold  V.  Salkey,  89  111.  412,  31  Am.  Rep.  93. 

237  Esposits  V.  Bowden,  7  El.  «&  Bl.  703. 

238  TAYLOR  V.  CALDWELL.  3  Best  «S:  S.  826;  LORD  v.  WHEELER,  1 
Gray  (Mass.)  282;  Walker  v.  Tucker,  70  111.  527;  The  Tornado,  108  U.  S.  342. 
2  Sup.  Ct.  746.  27  L.  Ed.  747;  Ward  v.  Vance.  93  Pa.  499.  Cf.  Nicol  v.  Fitch, 
115  Mich.  15,  72  N.  W.  988,  69  Am.  St  Rep.  542. 


476  DISCHARGE   OP  CONTRACT.  (Cb    li 

expressed  or  implied  warranty  that  the  thing  shall  exist,  the  contract 
is  not  to  be  construed  as  a  positive  contract,  but  as  subject  to  an 
imphed  condition  that  the  parties  shall  be  excused  in  case,  before 
breach,  performance  becomes  impossible  from  the  perishing  of  the 
thing  without  default  of  the  contractor,"  ^^®  Accordingly,  where  the 
contract  is  for  the  sale  of  specific  goods,  which  perish  without  the 
seller's  fault  before  the  day  appointed  for  delivery,  the  seller  is  ex- 
cused from  his  obligation  to  deliver,  and  the  buyer  from  his  obli- 
gation to  pay.^*** 

Same — Incapacity  for  Personal  Services. 

A  contract  which  has  for  its  object  the  rendering  of  personal  serv- 
ices is  discharged  by  the  death  or  incapacitating  illness  of  the  prom- 
isor.^*^  In  an  action  for  damage  sustained  by  a  breach  of  contract 
on  the  part  of  a  musician,  who,  having  promised  to  perform  at  a 
concert,  was  prevented  from  doing  so  by  a  dangerous  illness,  the  law 
governing  the  case  was  thus  stated :     "This  is  a  contract  to  perform 

239  TAYLOR  V.  CALDWELL,  3  Best  &  S.  826. 

240  Eugg  V.  Minett,  11  East,  210;  HOWELI-  v.  COUPLAND,  1  Q.  B.  Div. 
258;  DEXTEIl  v.  NORTON,  47  N.  Y.  62,  7  Am.  Rep.  415;  Thompson  v.  Gould, 
20  Pick.  (Mass.)  134,  139;  WELLS  v.  CALNAN,  107  Mass.  514,  9  Am.  Rep. 
65;  Gould  v.  Murch,  70  Me.  288,  35  Am.  Rep.  325;  McMillan  v.  Fox,  90  Wis, 
173,  62  N.  W.  1052.  So  where  goods  are  to  be  manufactured  in  particular 
factory,  which  is  destroyed.  STEWART  v.  STONE,  127  N.  Y.  500,  28  N.  E, 
595,  14  L.  R.  A.  215.  Or  a  crop  is  to  be  grown  on  a  particular  piece  of  land, 
and  the  crop  fails.  HOWELL  v.  COUPLAND,  1  Q.  B.  Div.  258.  Otherwise 
where  no  particular  land  is  specified.  ANDERSON  v.  MAY,  50  Minn,  280, 
52  N.  W,  530,  17  L.  R.  A.  555,  30  Am.  St.  Rep.  642. 

241  Boast  V.  Firth,  L.  R.  4  C.  P.  1 ;  Underwood  v.  Lewis  [1894]  2  Q.  B.  306; 
SPALDING  V.  ROSA,  71  N.  Y.  40,  27  Am.  Rep.  7;  Jennings  v.  Lyons,  39  Wis. 
553,  20  Am.  Rep.  57:  LAKEMAN  v.  POLLARD,  43  Me.  463,  09  Am.  Dec. 
77 ;  Shultz  v.  Johnson's  Adm'r,  5  B.  Mon.  (Ky.)  497 ;  Harrington  v.  Iron- Works 
Co.,  119  Mass.  82;  Fuller  v.  Brown,  11  Mete.  (Mass.)  440;  SCULLY  v.  KIRK- 
PATRICK,  79  Pa.  324,  21  Am.  Rep.  62;  Allen  v.  Baker,  80  N.  C.  91,  40  Am, 
Rep,  444;  Hubbard  v.  Belden,  27  Vt.  645;  Marvel  v.  Phillips,  162  Mass.  399, 
38  N.  E.  1117,  26  L.  R.  A.  416,  44  Am.  St.  Rep.  370;  Smith  v.  Preston's  Estate, 
170  111.  179,  48  N.  E.  688 ;  Blakely  v.  Sousa,  197  Pa.  305,  47  Atl.  280,  80  Am.  St, 
Rep.  821;  Walsh  v,  Fisher,  102  Wis.  172,  78  N,  W^  437,  43  L,  R.  A,  810, 
72  Am.  St.  Rep.  865  (violence  of  strikers);  Dow  v.  Bank,  88  Minn.  355,  93  N. 
W.  121.  So  the  death  of  the  employer  discharges  the  employe  from  perform- 
ance, Farrow  v.  Wilson,  L.  R.  4  C.  P.  589 ;  YERRINGTON  v.  GREENE,  7  R.  I, 
589,  84  Am.  Dec.  578,  but  not  necessarily  the  death  of  one  of  two  joint  employ- 
ers. Martin  v.  Hunt,  1  Allen  (Mass.)  419 ;  Hughes  v.  Gross,  166  Mass.  61,  43 
N.  E.  1031,  32  L.  R.  A.  620,  55  Am.  St.  Rep.  375.  But  the  death  of  one  member 
of  a  law  firm  which  has  contracted  to  conduct  a  case  terminates  the  contract, 
the  employment  being  personal.  Wright  v.  McCampboll,  75  Tex.  644,  13  S.  W. 
293 ;  Landa  v.  Shook,  87  Tex.  608,  30  S.  W.  536 ;  Baxter  v.  Billings,  83  Fed. 
790,  28  C.  C.  A.  85.  See,  also,  Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180 ; 
Salisbury  v.  Brisbane,  61  N.  Y.  617;  Martine  v.  Insurance  Soc,  53  N.  Y.  339, 
13  Am.  Rep.  529. 


§  250)  BY    I3IP0SSIBILITY    OF    PEIiFOKMANCE.  477 

a  service  which  no  deputy  could  perform,  and  which,  in  case  of  death, 
could  not  be  performed  by  the  executors  of  the  deceased;  and  I  am 
of  opinion  that  by  virtue  of  the  terms  of  the  original  bargain  incapacity 
of  body  or  mind  in  the  performer,  without  default  on  his  or  her  part, 
is  an  excuse  for  nonperformance.  Of  course  the  parties  might  ex- 
pressly contract  that  incapacity  should  not  excuse,  and  thus  preclude 
the  condition  of  health  from  being  annexed  to  their  agreement.  Here 
they  have  not  done  so,  and,  as  they  have  been  silent  on  that  point,  the 
contract  must,  in  my  judgment,  be  taken  to  have  been  conditional,  and 
not  absolute."  ^^ 

On  the  same  principle  it  has  been  held  that  where,  from  the  preva- 
lence of  a  contagious  and  fatal  disease  in  the  vicinity  of  the  place 
where  one  has  contracted  to  labor  for  a  specified  time,  the  danger  is 
such  as  to  render  it  unsafe  and  unreasonable  for  men  of  ordinary  care 
and  common  prudence  to  remaiii  there,  it  is  a  sufficient  cause  for  not 
fulfilling  the  contract.^*'  The  rule  that  the  death  of  a  person  dis- 
charges his  contract  to  render  personal  services  has  been  held  not  to 
apply  where  the  services  are  of  such  a  character  that  they  may  be 
just  as  well  performed  by  his  personal  representative.^**  Where  per- 
formance is  thus  rendered  impossible  by  death  or  incapacity,  the  con- 
tractor or  his  personal  representative  may  recover  upon  a  quantum 
meruit,  subject  to  the  right  of  the  defendant  to  have  the  recovery  re- 
duced by  the  amount  of  any  loss  which  he  may  have  suffered  from 
nonperformance  of  the  contract.^*^ 

Same — Performance  Prevented  by  the  Promisee. 

If  perfom]ance  of  a  promise  is  prevented  by  the  promisee,  there  is 
no  breach  of  contract  by  the  promisor.^** 

242  Robinson  v.  Davison,  L.  R.  6  Exch.  209. 

24  3  LAKEMAN  V.  POLLARD,  43  Me.  4G3,  09  Am.  Dee.  77.  But  see  DEWEY 
/.  SCHOOL  DIST.,  43  Mich.  480,  5  N.  W.  040,  38  Am.  Rep.  200. 

244  Hawl£ins  v.  Ball's  Adm'r,  18  B.  Mon.  (Ky.)  810,  08  Am.  Dec.  755; 
Siler  V.  Gray,  86  N.  C.  506;  Janin  v.  Browne,  59  Cal.  37;  Blllinjr's  Appeal. 
106  Pa.  558:  Howe  Sewin^-Macb.  Co.  v.  Rosensteel  (C.  C.)  24  Fed.  583; 
Shultz  V.  Johnson's  Adm'r,  5  B.  Mon.  (Ky.)  497;  Volk  v.  Stowell,  98  Wis.  385, 
74  N.  W.  118. 

24  5  Patrick  v.  Putnam,  27  Vt.  759;  Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am. 
Dec.  388:  LAKEMAN  v.  POLLARD,  43  Me.  463,  09  Am.  Dec.  77;  Green  v, 
Gilbert,  21  Wis.  395;  Parker  v.  Macomber.  17  R.  I.  074,  24  Atl.  404,  10  L.  R.  A. 
858.  The  right  to  recover  except  on  full  performance  may  be  excluded  by 
the  express  terms  of  the  contract.     CUTTER  v.  POW^ELL,  6  Term  R.  320. 

246  Black  V.  Woodrow,  39  Md.  194;  Smith  v.  Alker,  102  N.  Y.  87,  5  N.  E.  791; 
ante,  p.  408. 


478  DISCHARGE   OF   CONTRACT.  (Ch.  H 


DISCHARGE  BY  OPERATION  OF  EAW. 

251.  There  are  rules  of  lavr  -wliich,  operating  npon  certain  sets  of  cir- 
cumstances, trill  bring  about  the  discharge  of  a  contract;  as 
in  case  of 

(a)  Merger. 

(b)  Alteration  of  a  ■written  instrument. 

(c)  Proceedings  in  bankruptcy. 


SAME— MERGER. 

252.   Acceptance  of  a  higher  security  in  the  place  of  a  lower  merges 
or  extinguishes  the  low^er,  but 

(a)  The    t-wo    securities    must   be    different   in   their    legal   operation, 

the  one  of  a  higher  efficacy  than  the  other. 

(b)  The  subject-matter  of  the  txiro  securities  must  be  identical. 

(c)  The  parties  must  be  the  same. 

The  merger  of  a  lower  in  a  higher  security  does  not  depend  on  the 
intention  of  the  parties.  The  mere  acceptance  of  the  higher  security 
ipso  facto  extinguishes  the  lower.-*''  We  shall  presently  see  an  in- 
stance of  this  form  of  discharge  in  the  case  of  a  judgment  recovered 
in  an  action  for  breach  of  contract.  The  judgment  extinguishes  by 
merger  the  right  of  action  arising  from  the  breach.  In  like  manner, 
if  the  parties  to  a  simple  contract  embody  its  contents  in  a  deed  which 
they  both  execute,  the  simple  contract  is  discharged.^*®  In  order  to 
effect  a  merger,  the  two  securities  must  be  different  in  their  legal 
operation,  the  one  of  a  higher  efficacy  than  the  other.  A  second  secu- 
rity, taken  in  addition  to  one  similar  in  character,  will  not  affect  its 
validity  unless  there  be  a  discharge  by  substituted  agreement.^*®  It 
is  also  necessary  that  the  subject-matter  of  the  two  securities  shall  be 
identical,^^°  and  that  the  parties  shall  be  the  same.^''^     Even  a  security 

247  Price  V.  Moulton.  10  C.  B.  561;  Jonea  v.  Johnson,  3  Watts  &  S.  (Pa.) 
276,  38  Am.  Dec.  760;  Moale  v.  Hollius.  11  Gill  &  J.  (Md.)  11,  33  Am.  Dec. 
684;  Keefer  v.  Zimmerman,  22  Md.  274;  Wann  v.  McNulty,  2  Gilman,  355,  43 
Am.  Dec.  58;    ante,  p.  58. 

248  Martin  v.  Hamlin,  18  Mich.  354,  100  Am.  Dec.  181;  Howes  v.  Barker,  3 
Johns.  (N.  Y.)  506.  3  Am.  Dec.  526;  CLIFTON  v.  IRON  CO.,  74  Mich.  183. 
41  N.  W.  891,  16  Am.  St.  Rep.  621;  Williamson  v.  Cline,  40  W.  Va.  194,  20 
S.  E.  917. 

249  HIGGEN'S  CASE,  6  Coke,  45b;  Andrews  v.  Smith,  9  Wend.  (N.  Y.)  53; 
Gregory  v.  Thomas,  20  Wend.  (N.  Y.)  17;  Bill  v.  Porter,  9  Conn.  23;  ante, 
pp.  58,  435. 

250  Holmes  v.  Bell.  3  Man.  c<c  G.  213;   Witbock  v.  Waine.  16  N.  Y.  532. 

2B1  Hooper's  Case,  2  Leon.  110;  Banorgee  v.  Hovey,  5  Mass.  11,  4  Am.  Deo. 
17;   Doty  v.  Martin,  32  Mich.  462. 


§  253)  BY   OPERATIOX   OF   LAW.  479 

of  a  higher  nature,  if  it  is  taken  expressly  as  a  collateral  security,  will 
not  extinguish  the  inferior-^**^ 

It  is  often  said  that  where  a  simple  oral  contract  is  reduced  to  writ- 
ing the  written  contract  merges  the  oral  agreement,  but  the  term 
"merger"  is  thus  used  in  a  dift'erent  sense.  A  simple  contract  in  writ- 
ing is  of  no  higlier  nature  than  a  simple  contract  by  word  of  mouth. 
What  is  meant  is  simply  that  where  the  parties  have  reduced  their 
contract  to  writing  they  cannot  vary  or  add  to  it  by  parol  evidence. 
It  is  simply  a  question  of  evidence.^^^  Again,  one  simple  contract  may 
be  substituted  for  another.  In  such  case,  however,  there  is  no  dis- 
charge by  operation  of  law,  but  the  substitution  depends  upon  the 
intention  of  the  parties.^^* 


SAME— ALTERATION  OF  A  WRITTEN  INSTRUMENT. 

253.    If  a  deed  or  contract  in  Tirriting  is  altered  by  addition,  or  erasure, 
it  is  discliarged,  provided  the  alteration  is  made — 

(a)  In   a  material    part,    so    that   it    changes   the   legal    e£Pect   of   the 

instrument.      It  need  not  necessarily  be  prejudicial. 

(b)  By  a  party  to  the  contract,  or  by  a  stranger  ivith  his  consent. 

(c)  Intentionally. 

(d)  Without  the  consent  of  the  other  pai-ty. 

The  alteration  of  a  deed,  or  of  a  simple  contract  in  writing,  if 
made  under  the  circumstances  stated  above,  will  operate  as  a  dis- 
charge of  the  contract,  the  law  imposing  this  severe  penalty  as  a  safe- 
guard against  tampering  with  written  instruments.^^^     The  alteration, 

2B2  Day  V.  Leal,  14  Johns.  (N.  Y.)  404;  Butler  v.  Miller,  1  Denio  (N.  Y.)  407. 
And  see  the  cases  cited  in  the  preceding  note.     Ante,  p.  58,  note  48. 

253  Ante,  p.  3S6. 

2  54  9  Cyc.  Law  &  Proc.  a35,  ante,  p.  58. 

2  55  Suffell  V.  Bank,  9  Q.  B.  Div.  555;  Wood  v.  Steele,  6  Wall.  80,  18  L.  Ed. 
725;  Angle  v.  Insurance  Co.,  92  U.  S.  330,. 23  L.  Ed.  556;  Mersman  v.  Werges, 
112  U.  S.  139,  5  Sup.  Ct.  65,  28  I/.  Ed.  641;  Osgood  v.  Stevenson,  143  Masa 
399,  9  N.  E.  825;  McGrath  v.  Clark,  56  N.  Y.  34.  15  Am.  Rep.  372;  Draper  v. 
Wood,  112  Mass.  315,  17  Am.  Rep.  92;  Neff  v.  Horner,  63  Pa.  327,  3  Am.  Rep. 
555 ;  Kilkelly  v.  Martin,  34  Wis.  525 ;  Montag  v.  Linn,  23  111.  551 ;  Nicholson 
V.  Combs,  90  Ind.  515.  46  Am.  Rep.  229;  Holmes  v.  Trumper.  22  Mich.  427,  7 
Am.  Rep.  661 ;  Marsh  v.  Griffin,  42  Iowa,  403;  Aetna  Nat.  Bank  v.  Winchester, 
43  Conn.  391;  Morrison  v.  Garth,  78  Mo.  434;  .Tohnson  v.  Moore,  33  Kan.  90, 
5  Pac.  406.  Alteration  nullifies  a  negotiable  insti-umeut  even  against  a  bona 
Me  purchaser.  Master  v.  INIiller,  4  T.  R.  320;  Burchfield  v.  Moore,  3  El.  & 
Bl.  683;  Wait  v.  Pomeroy,  20  INIich.  425,  4  Am.  Rep.  395;  Citizens'  Nat.  Bank 
V.  Richmond,  121  Mass.  110;  Horn  v.  Bank,  32  Kan.  518,  4  Pac.  1022;  Gettys- 
burg Nat.  Banlc  v.  Chisholm,  169  Pa.  564,  32  Atl.  730,  47  Am.  St.  Rep.  929; 
Exchange  Nat.  Bank  v.  Bank,  58  Fed.  140,  7  C.  C.  A.  Ill,  22  L.  R.  A.  686 :  Se^ 
bolt  V.  Tatlie,  76  Minn.  131,  78  N.  W.  967.  This  rule  has  been  changed  in  many 
states  by  the  Negotiable  Instruments  Law.    Norton,  Bills  &  N.  (3d  Ed.)  246. 


4S0  DISCHARGE   OF  CONTRACT.  (Ch.  11 

to  have  this  effect,  must  be  material ;  that  is,  it  must  change  the  legal 
effect  of  the  instrument.-^*  Whether  it  is  material  or  not  must,  of 
course,  depend  upon  the  character  of  the  instrument.  Adding  words 
of  negotiability  to  a  note  or  changing  or  cutting  from  a  note  a  memo- 
randum limiting  its  effect  as  a  negotiable  instrument  or  otherwise,^ ^'' 
or  in  any  way  altering  it  so  as  to  destroy  or  change  its  negotiability;  ^^^ 
under  some  circumstances,  adding  a  seal  to  an  instrument,  or  effacing 
a  seai,-^''  changing  the  date  of  a  note  or  other  security,^*"  or  the 
time  of  payment,^*^  or  the  place  of  payment,^^^  or  the  amount  to  be 

2  56  Fuller  V.  Green,  64  Wis.  159,  24  N.  W.  907,  54  Am.  Rep.  600  (collectins 
cases);  Biirlingame  v.  Brewster,  79  111.  .515,  22  Am.  Rep.  177;  Birdsall  v.  Rus- 
sell, 29  N.  Y.  220;  Manufacturers'  Bank  v.  Foliett,  11  R.  I.  92;  Wessell  v. 
Glenn,  108  Pa.  i04;  Miller  v.  Reed,  27  Pa.  ^4.  67  Am.  Dec.  459:  Palmer  v. 
Largent,  5  Neb.  223;  Leonard  v.  Phillips,  39  Mich.  182,  33  Am.  Rep.  370. 
Filling  blanks  with  name  of  party,  or  more  specific  description  of  property,  will 
not  avoid  contract,  since  it  does  not  change  legal  effect.  Briscoe  v.  Reynolds. 
51  Iowa,  673,  2  N.  W.  529 ;  Rowley  v.  Jewett,  56  Iowa,  492,  9  N.  W.  353.  Fig- 
ures in  margin  being  no  part  of  the  note,  their  alteration  is  immaterial.  John- 
ston Harvester  Co.  v.  McLean,  57  Wis.  258,  15  N.  W.  177,  46  Am.  Rep.  39.  It 
has  been  held  in  England  that,  though  in  a  bank  note  the  promise  to  pay 
made  by  the  bank  is  not  touched  by  an  alteration  in  the  number  of  the  note. 
the  fact  that  a  bank  note  is  a  part  of  the  cm-rency,  and  that  the  number  placed 
on  it  is  put  to  important  uses  by  the  bank  and  by  the  public  for  the  detection 
of  forgery  and  theft,  causes  an  alteration  in  the  number  to  be  material,  and 
to  invalidate  the  note.  Suffell  v.  Bank,  9  Q.  B.  Div.  555.  Contra,  as  to 
bonds.  Birdsall  v.  Russell,  29  N.  Y,  220;  City  of  Elizabeth  v.  Force,  29  N. 
J.  Eq.  587. 

257  Benedict  v.  Cowden,  49  N.  Y.  396,  10  Am.  Rep.  382;  Wait  v.  Pomeroy. 
20  Mich.  425,  4  Am.  Rep.  395;  Gerrish  v.  Glines.  56  N.  H.  9;  Johnson  v. 
Heagan,  23  Me.  329;  Wheeloek  v.  Freeman,  13  Pick.  (Mass.)  165,  23  Am.  Dec. 
674;  Cochran  v.  Nebeker,  48  Ind.  459;  Davis  v.  Henry,  13  Neb.  497,  14  N.  W. 
523;   Stephens  v.  Davis,  85  Tenn.  271,  2  S.  W.  382. 

258  Booth  V.  Powers,  56  N.  Y.  22;  Union  Nat.  Bank  v.  Roberts,  45  Wis. 
373;  Needles  v.  Shaffer,  60  Iowa,  65,  14  N.  W.  129;  Belknap  v.  Bank,  100 
Mass.  376,  97  Am.  Dec.   105. 

2  59  Davidson  v.  Cooper,  11  Mees.  &  W.  778.  13  Mees.  &  W.  343;  Rawson  v. 
Davidson,  49  Mich.  607,  14  N.  W.  505.  Under  some  circumstances  and  in 
some  jurisdictions,  the  seal  may  make  no  difference.  Truett  v.  Wainwright, 
4  Gilman  (111.)  411;    White  v.  Fox.  29  Conn.  570. 

200  Wood  V.  Steele,  6  Wall.  80,  18  L.  Ed.  725;  Vance  v.  Lowther,  1  Exch. 
Div.  176;  Walton  v.  Hastings,  4  Camp.  223;  Outhwaite  v.  Limtley,  Id.  179; 
Hamilton  v.  Wood,  70  Ind.  306;  Britton  v.  Dierker,  46  Mo.  591,  2  Am.  Rop. 
553;  Crawford  v.  Bank,  100  N.  Y.  50,  2  N.  B.  881;  Miller  v.  Gilleland,  19  Pa. 
119. 

281  Lee  V.  Murdock,  4  Pat.  App.  261;  Alderson  v.  Langdale,  3  Barn.  &  Adol. 
660;  Lewis  v.  Kramer,  3  Md.  265;  Benedict  v.  Miner,  58  111.  19;  Lisle  v. 
Rogers,  18  B.  Mon.  (Ky.)  528 ;   Seebold  v.  Tatlie,  76  J^Iinn.  131,  78  N.  W.  967. 

262  Woodworth  v.  Bank,  19  Johns.  (N.  Y.)  391,  10  Am.  Dec.  239;  Whitesides 
V.  Bank,  10  Bush  (Ky.)  501,  19  Am.  Rep.  74;  Charlton  v.  Reed,  61  Iowa,  166. 
16  N.  W.  64.  47  Am.  Rop.  SOS;  Townsend  v.  Wagon  Co..  10  Neb.  615,  7  N.  W. 
274,  35  Am.  Rep.  493;  White  v.  Hass,  32  Ala.  430,  70  Am.  Dec.  549. 


§  253)  BY   OPERATION    OF   LAW.  4S1 

paid,  either  by  lessening  or  increasing  the  principal, ^"^  or  by  changing 
the  rate  of  interest,  or  adding  a  provisipn  for  interest ;  -"*  adding  to 
or  withdrawing  from  an  instrument  the  name  of  a  maker,  drawer, 
or,  according  to  some  of  the  cases,  a  surety,  after  the  instrument  lias 
been  executed,-®^ — are  all  material  alterations.  But  "an  alteration 
which  only  does  what  the  law  would  do — that  is,  only  expresses  what 
the  law  implies — is  not  a  material  alteration,  and  therefore  would  not 
avoid  an  instrument."  -°°  It  is  possible  for  the  character  of  an  instru- 
ment to  be  affected  by  an  alteration  which  does  not  touch  the  contractual 
rights  set  forth  in  it.  If,  for  instance,  after  the  execution  and  delivery 
of  an  unattested  bond,  the  obligee  should  fraudulently,  and  with  a 
view  to  some  improper  advantage,  procure  a  person  who  was  not 
present  at  the  execution  of  the  instrument  to  sign  his  name  thereto  as 
an  attesting  witness,  the  obligor  would  be  discharged.^^^     The  alter- 

2fl3  Goodman  v.  Eastman,  4  N.  H.  455;  Bank  of  Commerce  v.  Bank,  3  N.  Y. 
230.  Or  by  altering  currency  in  which  note  is  payable.  Darwin  v.  Rippey, 
63  N.  C.  318;  Martendale  v.  Follett,  1  N.  H.  95;  Schwalm  v.  Mclntyre,  17 
Wis.  232. 

264  Warrington  v.  Early,  2  El.  &  Bl.  763;  McGrath  v.  Clark,  56  N.  Y.  34, 
15  Am.  Hep.  372;  Weyerhauser  v.  Dun,  100  X.  Y.  150,  2  N.  E.  274;  Benedict  v. 
Miner,  58  111.  19;  Ivory  v.  ISIichael.  33  Mo.  398;  Lee  v.  Starbird,  55  :Me.  491: 
Woodwortb  v.  Anderson,  63  Iowa,  503,  19  N.  W.  290;  Kilkelly  v.  Martin,  34 
Wis.  525;  Neff  v.  Horner,  63  Pa.  327.  3  Am.  Rep.  555;  Davis  v.  Henry,  13 
Neb.  497,  14  N.  W.  523;  Holmes  v.  Trumper,  22  Mich.  427,  7  Am.  Kep.  661; 
Cobm-n  v.  Webb,  56  Ind.  96;  Fay  v.  Smith,  1  Allen  (Mass.)  477.  79  Am.  Dec. 
752. 

205  Bank  of  Limestone  v.  Penick,  5  T.  B.  Mon.  (Ky.)  25;  Pulliam  v.  With- 
ers, 8  Dana  (Ky.)  98,  33  Am.  Dec.  479;  Martin  v.  Thomas,  24  How.  315.  10 
L.  Ed.  689;  Gardner  v.  Walsh,  32  Eng.  Law  &  Eq.  162;  Smith  v.  United 
States,  2  Wall.  219,  8  L.  Ed.  130;  Henry  v.  Coats,  17  Ind.  161;  Wallace  v. 
Jewell,  21  Ohio  St.  163,  8  Am.  Rep.  48;  Sullivan  v.  Rudisill.  63  Iowa,  158,  18 
N.  W.  856;  Nicholson  v.  Combs,  90  Ind.  515,  46  Am.  Rep.  229.  It  seems, 
however,  according  to  the  weight  of  authority  in  this  country,  that  the  addi- 
tion of  the  signature  of  a  surety  or  guarantor,  not  a  joint  maker  (but  see 
Brownell  v.  Winnie,  29  N.  Y.  400,  80  Am.  Dec.  341).  does  not  discharge 
the  maker  of  a  note.  Mersman  v.  Werges,  112  U.  S.  139,  5  Sup.  Ct.  65,  28 
L.  Ed.  641;  Stone  v.  White,  S  Gray  (Mass.)  589;  McCaughey  v.  Smith.  27  N. 
Y.  39;  Montgomery  R.  C-o.  v.  Hurst,  9  Ala.  518;  Wallace  v.  Jewell,  21  Ohio  St. 
172,  8  Am.  Rep.  48 ;  Miller  v.  Finley,  26  Mich.  249,  12  Am.  Rep.  306.  And  it 
has  been  held  that  obtaining  signature  of  second  surety  does  not  discharge 
first  surety.  Ward  v.  Hackett  30  Minn.  150,  14  N.  W.  578,  44  Am.  Rep.  187: 
Keith  v.  Goodwin.  31  Vt.  208,  73  Am.  Dec.  345;  Sampson  v.  Barnard.  98  Mass. 
359.  Changing  indorser  into  guarantor  is  material.  Belden  v.  Hann,  61  Iowa. 
42,  15  N.  W.  591. 

266  2  Pars.  Cont.  720;  Aldous  v.  Cornwell,  L.  R.  3  Q.  B.  573;  Brown  v.  Pink- 
ham,  18  Pick.  (Mass.)  172;  Rudesill  v.  Jefferson  Co.  Court,  85  111.  446;  Hough- 
ton v.  Francis,  29  111.  244;  First  Nat.  Bank  v.  Wolff,  79  Cal.  69,  21  Pac.  551. 
748;   Bank  of  Genesee  v.  Patchiu  Bank,  13  N.  Y.  309. 

267  Adams  v.  Frj-e,  3  Mete.  (Mass.)  103:  Marshall  v.  Gougler,  10  Serg.  A: 
R.   (Pa.)    164.     So  of  promissory  note.     Brackett  v.   Mouutfort,   12   Me.    72: 

Clark  Cont.  (2d  Ed.)— 31 


482  DISCHARGE   OP   CONTRACT.  (Ch.  11 

ation  is  material  in  that  it  might  allow  proof  of  the  execution  of  the 
bond  by  proving  such  person's  handwriting.^®* 

"It  is  not  to  the  point  that  the  alteration  be  or  be  not  to  the  prejudice 
of  the  party  against  whom  the  liability  is  sought  to  be  enforced.  The 
courts  will  not  sit  in  judgment  upon  the  question  whether  it  be  to  the 
prejudice  of  the  party  aggrieved  or  not."  ^^^ 

By  Whom-. 

It  was  at  one  time  held  in  England  that  any  material  alteration  by 
a  stranger  would  discharge  the  contract,  and  even  now  it  seems  to  be 
there  held  that  such  an  alteration  will  operate  as  a  discharge,  if  it 
was  made  for  the  benefit  of  a  party  to  the  contract,  and  while  the  in- 
strument was  in  the  party's  possession,  whether  the  party  knew  of  or 
consented  to  the  alteration  or  not.^"°  The  doctrine  is  not  recognized 
to  any  extent,  if  at  all,  in  this  country.  On  the  contrary,  it  is  held 
that  alteration  by  a  stranger,  without  the  knowledge  or  consent  of 
the  parties,  is  a  mere  spoliation,  and  does  not  discharge  the  contract.*^^ 

Intent. 

The  alteration,  to  efifect  a  discharge,  must  be  intentional.  An  alter- 
ation by  accident  or  mistake,  occurring  under  such  circumstances  as 
to  negative  the  idea  of  intention,  will  not  invalidate  the  document.^^^ 
Though  there  are  some  cases  to  the  contrary,  by  the  weight  of  author- 
ity, in  so  far  as  the  instrument  itself  is  concerned,  it  is  immaterial 
whether  the  alteration  was  with  fraudulent  intent  or  not.     Innocent 

Tlioruton  v.  Appleton,  29  Me.  298;  Homer  v.  Wallis,  11  Mass.  310,  6  Am.  Dec. 
169;  Smith  v.  Dunham,  8  Pick.  (Mass.)  246.  Conti-a  in  case  of  note.  Ful- 
ler V.  Green,  64  Wis.  159,  24  N.  W.  907,  54  Am.  Rep.  600  (distinguishing  some 
of  cases  above  cited). 

268  Ante,  p.  388. 

269  Norton,  Bills  &  N.  (3d  Ed.)  252;  Chappell  v.  Spencer,  23  Barb.  (N.  Y.) 
584;  Gardner  v.  Walsh,  5  El.  &  Bl.  83;  Martin  v.  Thomas,  24  How.  315,  16  L. 
Ed.  689 ;  Coburn  v.  Webb,  56  Ind.  96,  26  Am.  Rep.  15. 

270  Anson.  Cont.  (4th  Ed.)  327;  PIGOT'S  CASE,  11  Rep.  27;  DAVIDSON  v. 
COOPER,  11  Mees.  &  W.  778,  13  Mees.  &  W.  343. 

271  Lewis  V.  Payn,  8  Cow.  (N.  Y.)  71,  18  Am.  Dec.  427;  Martin  v.  Insurance 
Co.,  101  N.  Y.  498,  5  N.  E.  338;  United  States  v.  Spalding.  2  Mason,  478,  Fed. 
Cas.  No.  16,365;  Yeager  v.  Musgrave,  28  W.  Va.  90;  Dmm  v.  Drum.  133 
Mass.  566;  Church  v.  Powle,  142  Mass.  12,  6  N.  E.  764;  Nichols  v.  Johnson, 
10  Conn.  192;  Bigelow  v.  Stilphen,  35  Vt.  521;  Neff  v.  Horner,  63  Pa.  327,  3 
Am.  Rep.  555;  Wickes'  Lessee  v.  Caulk,  5  Har.  &  J.  (Md.)  30;  Condict  v. 
Flower,  106  111.  105;  Hunt  v.  Gray,  35  N.  J.  Law,  227,  10  Am.  Rep.  232; 
Piorsol  V.  Grimes,  30  Ind.  129,  95  Am.  Dec.  673;  Langenberger  v.  Ki'oeger,  48 
Cal.  147,  17  Am.  Rep.  418;  Moore  v.  Ivers.  83  Mo.  29;  Andrews  v.  Calloway, 
50  Ark.  358,  7  S.  W,  449;  Fullerton  v.  Sturges,  4  Ohio  St.  530;  White  Sewing 
Mach.  Co.  V.  Dakin,  86  Mich.  581,  49  N.  W.  583,  13  L.  R.  A.  313. 

272  WILKINSON  V.  JOHNSON,  3  Barn.  &  C.  428:  Raper  v.  Birkback.  15 
East,  17 ;  Horst  v.  Wagner,  43  Iowa,  373.  22  Am.  Rep.  255 ;  Van  Brunt  v.  Eoff, 
35  Barb.  (N.  Y.)  501;   Neff  v.  Horner,  63  Pa.  327,  3  Am.  Rep.  555. 


§  253)  BY    OPERATION    OF    LAW.  483 

but  intentional  alteration  destroys  its  efficacy.  An  alteration,  how- 
ever, without  fraudulent  intent,  will  not  prevent  recovery  on  the 
original  consideration  for  the  instrument.  Where  a  bill,  note,  or  other 
security  is  given  for  a  valuable  consideration  existing  independently 
of  the  instrument,  it  is  generally  held  that  an  alteration  of  the  note 
or  bill  in  a  material  part  by  the  holder  without  authority  of  the  maker 
prevents  a  recovery  upon  the  instrument,  whether  the  alteration  was 
with  or  without  fraudulent  intent.^^^  If  the  alteration  was  made 
with  fraudulent  intent,  there  can  be  no  recovery,  even  on  the  original 
consideration;^^*  but  recovery  on  the  original  consideration  may  be 
had  if  the  alteration  was  innocent.^ ''^ 

Consent. 

If  the  alteration  is  with  the  consent  of  the  party  claiming  a  discharge, 
or  if  it  is  afterwards  ratified  by  him,  there  is  no  discharge.^ ^^  It 
follows  that  where  there  are  several  promisors  or  obligors,  and  some 


27  8  Alderson  v.  Langdale,  3  Barn.  &  Adol.  6G0;  Heath  v.  Blake,  28  S.  C. 
40G,  .5  S.  E.  842;  Wood  v.  Steele,  G  Wall.  80,  18  L.  Ed.  72.5;  Adams  v.  Frye, 
3  Mete.  (Mass.)  103 ;  Eckhert  v.  Pickel,  59  Iowa,  545,  13  N.  W.  708.  Contra, 
Van  Bnint  v.  Eoff,  35  Barb.  (N.  Y.)  501;  Foote  v.  Hambrick.  70  Miss.  157, 
11  South.  567,  35  Am.  St.  Rep.  631;  Wallace  v.  Tice,  32  Or.  421.  51  Pac.  733. 
Signing  as  attesting  witness.  Thornton  v.  Appleton,  29  Me.  298 ;  Milberry 
V.  Storer,  75  Me.  69,  46  Am.  Rep.  361. 

271  Meyer  v.  Huneke,  55  N.  Y.  412;  SMITH  v.  MACE,  44  N.  H.  553;  War- 
der, Bushnell  «&  Glessner  Co.  v.  Willyard,  46  Minn.  531,  49  N.  W.  300,  13  L.  R. 
A.  596,  24  Am.  St.  Rep.  246;  Ballard  v.  Insurance  Co.,  81  Ind.  239;  Walton 
Plow  Co.  V.  Campbell,  35  Neb.  174,  52  N.  W.  883,  16  L.  R.  A.  468;  Hunt  v. 
Gray,  35  N.  J.  Law,  227,  10  Am.  Rep.  232 ;  Vogle  v.  Ripper,  34  111.  100,  85  Am. 
Dec.  298 ;   Maguire  v.  Eichmeier,  109  Iowa,  301,  80  N,  W.  395. 

27  5  Sloman  v.  Cox,  1  Cromp.,  M.  &  R.  471 ;  Hunt  v.  Gray,  35  N.  J.  Law,  227, 
10  Am.  Rep.  232;  Matteson  v.  Ellsworth,  33  Wis.  488,  14  Am.  Rep.  766; 
Sullivan  v.  Rudisill,  63  Iowa,  1-58.  18  N.  W.  856;  Keene  v.  Weeks.  19  R.  I.  309. 
33  Atl.  446;  Gorden  v.  Robertson,  48  Wis.  493,  4  N.  W.  579;  Savage  v.  Savage, 
36  Or.  268,  59  Pac.  461. 

27  6  Stoddard  v.  Penniman,  113  Mass.  386;  Commercial  Bank  v.  Warren,  15 
N.  Y.  577;  Booth  v.  Powers.  56  N,  Y.  22;  Stiles  v.  Probst,  69  111.  382;  Hanson 
V.  Crawley,  41  Ga.  303;  Derby  v.  Thrall.  44  Vt.  413,  8  Am.  Rep.  389;  Mc- 
RAVEN  V.  CRISLER,  53  Miss.  542;  National  State  Bank  v.  Rising,  4  Hun 
(N,  Y.)  793;  Duker  v.  Franz,  7  Bush  (Ky.)  273,  3  Am.  Rep.  314;  Speake  v. 
United  States,  9  Cranch,  28,  3  L.  Ed.  645;  Collins  v.  Collins,  51  Misa  311. 
24  Am.  Rep.  632;  Jackson  v.  Johnson,  67  Ga.  167;  Canon  v.  Grigsby,  116  111. 
151,  5  N.  E.  362,  56  Am.  Rep.  769;  Payne  v.  Long.  121  Ala.  385,  25  South.  780. 
An  instrument  is  not  avoided  by  inserting  a  provision  for  interest  at  the  rate  it 
was  intended  to  bear.  First  Nat.  Bank  v.  Carson,  GO  Mich.  432,  27  N.  W.  589 ; 
nor  by  filling  blanks  with  names  of  parties,  place  of  payment,  or  otherwise,  as 
intended  by  the  parties,  Briscoe  v.  Reynolds,  51  Iowa,  673,  2  N.  W.  529 ;  Gillas- 
pie  V.  Kelly,  41  Ind.  158,  13  Am.  Rep.  318 ;  Redlich  v.  Doll,  54  N.  Y.  234,  13  Am. 
Rep.  573 ;  Abbott  v.  Rose,  62  ]Me.  194.  16  Am.  Rep.  427 ;  Johnston  Harvester 
Co.  V.  McLean,  57  Wis.  258.  15  N.  W.  177,  46  Am.  Rep.  39 ;  Witte  v.  Williams,  8 
S.  C.  290,  28  Am.  Rep.  294. 


484  DISCHARGE   OP    CONTRACT.  (Ch.  11 

consent,  those  so  consenting  remain  bound,  but  those  who  do  not  con- 
sent are  discharged.^^' 

Loss  of  Instrument. 

The  loss  of  an  instrument  only  affects  the  rights  of  the  parties  in 
so  far  as  it  occasions  a  difficulty  of  proof,  except  that,  in  case  of  the 
loss  of  a  negotiable  instrument,  the  holder,  if  he  loses  it,  loses  his 
rights  under  it,  unless  he  offer  to  the  party  primarily  liable  upon  it 
an  indemnity  against  possible  claims. ^^*  ^ 

^,,     ^  v^  ^ 

N^  SAME— BANKRUPTCY. 

254.  Bankruptcy  effects  a  statutory  release  from  debts  and  liabilities 
provable  under  tbe  bankruptcy,  ivken  the  bankrupt  lias  ob- 
tained from  tbe  court  an  order  of  discbarge. 

Discharge  by  bankruptcy  proceedings  is  statutory,  and  need  not  be 
further  mentioned. 


REMEDIES  ON  BREACH  OF  CONTRACT. 

255.     Wbere  a  contract  is  broken  by  one  of  tbe  parties,  the  other  par- 
ty  acquires,    or   may    acquire,   three    distinct    rights: 

(a)  He  may  be  discharged  from  further  performance. 

(b)  If  he  has   done   anything  under  the   contract,  he  has  a  right   to 

sue  on  the  quantum  meruit,  a  cause  of  action  distinct  from 
that  arising  out  of  the  original  contract,  and  based  upon  a 
contract  created  by  la^sr. 

(c)  He   has  a   right   of  action  on  the   original   contract,  or  term  il0 

of  the    contract   broken,    and   may  maintain: 
(1)    A    suit    to    obtain    damages    for    the    loss    sustained    by    the 

breach. 
(2)    A  suit  to  obtain  specific  performance  of  the  contract  by  the 
other  party.2T9 

We  have  seen  that  if  a  contract  is  discharged  by  the  breach  the 
party  injured  is  exonerated  from  further  performance,  provided  he 
treats  the  breach  as  a  discharge.  Where  he  relies  on  a  discharge,  his 
remedy  is  by  setting  up  his  discharge  as  a  defense  in  an  action 
brought  by  the  other  party  on  the  contract.  In  addition  to  his  right 
to  a  discharge  from  performance,  he  has  a  right,  if  he  has  done  any- 

277  Gardiner  v.  Harbeck,  21  111.  128;  Myers  v.  Nell,  84  Pa.  3G9:  State  v.  Van 
Pelt,  1  Ind.  30-4;  Warring  v.  Williams,  S  Pick.  (Mass.)  322;  Davis  v.  Bauer, 
41  Ohio  St.  257;    Bell  v.  Mahin,  69  loAva,  408,  29  X.  W.  331. 

278  Hansard  v.  Robinson,  7  Barn.  Sa  C.  90;  Couflaus  Quarry  Co.  v.  Parker, 
L.  R.  3  C.  P.  1. 

270  Anson,  Cont.  (4tb  Ed.)  308,  309. 


§§  256-259)  REMEDIES   ON    BKEACII    OF   CONTRA.CT.  485 

thing  under  the  contract,  to  sue  on  the  quantum  meruit  for  compen- 
sation for  his  partial  performance. -*'°  This  cause  of  action  is  distinct 
from  that  arising  out  of  the  original  contract.  It  is  based  upon  a 
new  contract,  generally  called  an  implied  contract,  but  really  a  quasi 
contract,,  or  contract  created  by  law,  because  of  the  receipt  by  the 
other  party  of  the  benefits  of  such  performance.  In  addition  to  these 
rights,  the  party  so  injured  by  a  breach  has  a  right  of  action  based 
upon  the  original  contract  or  term  of  the  contract  broken.  This 
remedy  exists  not  only  where  he  is  discharged  by  the  breach,  but  also 
where  he  is  not  discharged,  or  where,  though  he  was  entitled  to  claim 
a  discharge,  he  has  preferred  to  waive  such  right,  and  go  on  with  the 
contract.  His  remedy  in  this  case  is  of  two  kinds:  (i)  He  may 
seek,  in  a  court  of  law,  to  obtain  damages  for  the  loss  he  has  sus- 
tained by  himself  taking  the  initiative  and  bringing  an  action  for 
damages,  or  by  waiting  until  the  other  party  sues  him,  and  then  as- 
serting his  right  by  way  of  recoupment,  counterclaim,  or  cross  action. 
He  may  resort  to  this  remedy  whether  he  claims  a  discharge  by  reason 
of  the  other's  breach  or  not.  (2)  He  may,  in  the  case  of  certain  con- 
tracts and  under  special  circumstances,  obtain  specific  performance 
of  the  contract  by  the  other  party,  by  bringing  a  suit  in  equity  for 
that  purpose.  Of  course  he  would  not  be  entitled  to  such  performance 
unless  he  performed  the  contract  on  his  part,  or  offered  to  perform  it, 
and  therefore  he  cannot  resort  to  this  remedy  where  he  claims  a  dis- 
charge from  further  performance. 

We  shall  only  treat  of  these  two  remedies  in  the  most  general  way, 
and  give  briefly  some  of  the  elementary  rules,  for  they  do  not  properly 
come  within  the  scope  of  our  work. 


SAME— DAMAGES.2  81 

256.  Every  breach   of  contract   entitles  the  party  injured  to  sue  for 

damages. 

257.  The  rule  as  to  the  measure  of  damages  is  that  the  plaintiff  is, 

so  far  as  money  can  do  it,  to  be  placed  in  the  same  situation 
as  if  the  contract  had  been  performed.  If  he  has  suffered  no 
actual  loss,  he  is  entitled  to  nominal  damages.  But— 
LIMITATION  OF  RULE — The  damages  recoverable  are  only  such  as 
might  have  been  supposed  by  the  parties  to  be  the  natural 
result  of  the  breach. 

280  Ante,  p.  468;  Phillips  v.  Wiginton,  1  Ad.  &  E.  333;  PRICKETT  v. 
BADGER,  1  C.  B.  (N.  S.)  290;  Howard  v.  Daly,  Gl  N.  Y.  3G2.  369,  19  Am.  Rep. 
285;  DERBY  v.  JOHNSON,  21  Vt.  17;  Brinkley  v.  Swicegood,  Go  N.  C.  G2G; 
Britt  V.  Hays,  21  Ga.  157;  Urquhart  v.  Mortgage  Co.,  85  Minu.  69,  88  N.  W. 
264.     See,  also,  ante,  p.  471. 

2  81  See  Anson,  Cont.  (4th  Ed.)  309-312. 


486  DISCHARGE   OF  CONTRACT.  (Ch.  11 

258.  The  parties  may  assess   the  damages  themselves  by  provision  in 

the   contract,   hut  they  cannot  provide  for  a  penalty. 

259.  Damages   are   by  "cvay   of   compensation,   and   not   of  punishment, 

and,  as  a  rnle,  only  the  pecuniary  loss  can  be  recovered;    but — 
£XC£PTION — There  is  an  exception  in  case  of  the  breach  of  a  prom- 
ise to  marry. 

The  damages  awarded  for  a  breach  of  contract  should  represent 
the  loss  actually  sustained,  the  rule  of  the  common  law  being,  as 
stated  above,  that  a  party  who  has  been  injured  by  a  breach  of  contract 
"is,  so  far  as  money  can  do  it,  to  be  placed  in  the  same  situation, 
with  respect  to  damages,  as  if  the  contract  had  been  performed."  ^®^ 
Every  breach  of  contract  gives  the  injured  party  a  right  of  action, 
and  the  right  to  a  verdict  in  his  favor;  but,  if  no  actual  loss  at  all 
accrues  from  the  breach,  he  is  only  entitled  to  nominal  damages, — 
that  is,  "a  sum  of  money  that  may  be  spoken  of,  but  that  has  no  exist- 
ence in  point  of  quantity."  '^^^ 

Remote  and  Proximate. 

The  rule  just  stated  is  subject  to  the  limitation  that  only  such  dam- 
ages can  be  recovered  as  can  be  deemed  to  have  been  in  the  contempla- 
tion of  the  parties.  The  breach  of  a  contract  may  result  in  losses  which 
neither  party  contemplated  or  could  contemplate  at  the  time  the  con- 
tract was  entered  into,  and  the  courts  have  striven  to  lay  down  rules 
by  which  the  limit  of  damages  may  be  ascertained.  The  limit  must 
depend  upon  the  nature  of  the  particular  contract,  and  only  the  most 
general  rules  can  be  laid  down.  It  is  said  that  "the  damages  to  which 
the  plaintiff  is  entitled  are  such  as  might  have  been  supposed  by  the 
parties  to  be  the  natural  result  of  a  breach  of  the  contract ;  such  as 
might  have  been  in  their  contemplation  when  the  contract  was 
made."  ^**  Any  special  loss  which  might  accrue  from  a  breach  of 
contract,  but  which  would  not  naturally  and  obviously  flow  therefrom, 
must,  to  be  recoverable,  be  expressly  provided  for  in  making  the 
contract.  In  a  leading  case,-*^  the  rules  were  thus  stated:  That 
where  a  party  has  broken  his  contract  the  damages  which  the  other 
party  should  recover  should  be  (i)  such  as  may  fairly  and  reasonably 
be  considered  to  arise  naturally — that  is,  according  to  the  usual  course 

282  Per  Parke,  B.,  in  ROBINSON  v.  HARMAN,  1  Exch.  8.55.  And  see 
Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Cutting  v.  Railway  Co.,  1.3 
Allen  (Mass.)  381;    Croucher  v.  Oakman,  3  Allen  (INIass.)  185. 

283  Per  Maiile,  J.,  in  BEAUMONT  v.  GREATHEAD,  2  C.  B.  494.  And  see 
Excelsior  Needle  Co.  v.  Smith,  61  Conn.  56,  23  Atl.  693;  Horton  v.  Bauer,  129 
N.  Y.  148,  29  N.  E.  1;  Watts  v.  Weston.  62  Fed.  136,  10  C.  C.  A.  302;  BARNES 
V.  BROWN,  130  N.  T^.  372,  29  N.  E.  760;    Weber  v.  Squier,  51  Mo.  App.  601, 

284  Anson,  Cont.  (4th  Ed.)  .310;  HADLEY  v.  BiXENDALE,  9  Exch.  341; 
Grcbert-Borgnis  v.  Nugent.  15  Q.  B.  Dlv.  S5. 

286  HADLEY  V.  BAXENDALE,  9  Exch.  341. 


§§  256-259)  REMEDIES   ON   BUEACII    OF    CONTRACT.  487 

of  things — from  the  breach,  or  such  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  parties  at  the  time  they  made 
the  contract,  as  the  probable  result  of  its  breach;  ^^^  that  (2)  if  the 
damages  arose  out  of  special  circumstances,  communicated  and  so 
known  to  both  parties  when  the  contract  was  made,  the  damages  which 
the  parties  would  reasonably  contemplate  would  be  the  amount  of 
injury  which  would  ordinarily  follow  from  the  breach  of  a  contract 
under  those  special  circumstances  so  known  and  communicated;-" 
but  (3)  if  the  special  circumstances  were  wholly  unknown  to  the 
party  breaking  the  contract,  he  at  the  most  could  only  be  supposed  to 
have  had  in  his  contemplation  the  amount  of  injury  which  would 
arise  generally,  and  in  the  great  multitude  of  cases  not  affected  by  any 
such  special  circumstances." °° 


288 


Vindictive,  Punitive,  or  Exemplary  Damages. 

Damages  in  an  action  for  breach  of  contract  are  by  way  of  com- 
pensation for  the  loss  sustained  by  the  breach,  and  never  by  way  of 
punishment ;  and  the  plaintiff,  therefore,  cannot  recover  more  than  his 
pecuniary  loss.  This  is  the  general  rule,  but  it  is  subject  to  an  excep- 
tion in  case  of  a  breach  of  promise  of  marriage.     In  such  a  case,  if  the 

286  Cutting  V.  Railway  Co.,  13  Allen  (Mass.)  381;  Clark  v.  Moore,  3  Mich. 
63 ;  Carnegie  v.  Holt.  99  Mich.  G06,  58  N.  W.  623 ;  Booth  v.  Mill  Co.,  60  N.  T. 
487;  Hamilton  v.  McPherson,  28  N.  Y.  72,  84  Am.  Dec.  330;  Swain  v.  Schieffe- 
lin,  134  N.  Y.  471,  31  N.  E.  1025.  18  L.  R.  A.  385;  Blagen  v.  Thompson,  23  Or. 
239,  31  Pac.  647,  18  L.  R.  A.  315 ;  Fleming  v.  Beck,  48  Pa.  309 ;  True  v.  Tele- 
graph Co.,  60  Me.  9,  11  Am.  Rep.  156;   Hurd  v.  Dunsmore,  03  N.  H.  171. 

287  Smeed  v.  Foord,  1  EI.  &  El.  602;  Booth  v.  Mill  Co.,  60  N.  Y.  487;  Hammer 
V.  Schoenfelder,  47  Wis.  455,  2  N.  W.  1129;  Shepard  v.  Gaslight  Co.,  15  Wis. 
318,  82  Am.  Dec.  679;  King  v.  Woodbrldge,  34  Vt.  565;  Smith  v.  Railroad  Co.. 
12  Allen  (Masa)  531,  90  Am.  Dec.  166;  Illinois  Cent.  R.  Co.  v.  Cobb,  64  111.  128; 
Watson  V.  Inhabitants  of  Needham,  161  Mass.  404,  37  N.  E.  204,  24  L.  R.  A. 
287.  Mere  communication  of  special  circumstances  is  not  enough  unless  given 
under  such  circumstances  as  reasonably  to  imply  that  it  formed  tlie  basis 
of  the  agreement;  that  is,  unless  the  circumstances  were  such  that  it  might 
be  supjwsed  tliat  a  reasonable  man  would  have  had  them  in  contemplation  as 
a  probable  result  of  a  breach.  British  Columbia  &  Vancouver's  Island  Spar, 
Lumber  &  Saw-jMill  Co.  v.  Nettleship,  L.  R.  3  C.  P.  499;  Home  v.  Railway.  7 
C.  P.  583,  591;  Booth  v.  Mill  Co.,  00  N.  Y.,  at  page  496;  Bridges  v.  Stickney, 
38  Me.  361;  McKinnon  v.  McEwaii,  48  INIich.  lOG,  11  N.  W.  S2S.  42  Am.  Rep. 
458;  Snell  v.  Cottingham,  72  111.  101;  Friend  &  T.  Lumber  Co.  v.  Miller,  67  Cal. 
464,.  8  Pac.  40. 

288  Cory  V.  Ship  Bldg.  Co.,  L.  R.  3  Q.  B.  181;  British  Columbia  &  Van- 
couver's Island  Spar,  Lumber  &  Saw-Mill  Co.  v.  Nettleship,  L.  R.  3  C.  P.  499; 
Bartlett  v.  Blanchard,  13  Gray  (Mass.)  429;  Billmeyer  v.  Wagner,  91  Pa.  92; 
Paiue  V.  Sherwood,  19  Minn.  315  (Gil.  270);  Mihills  Mfg.  Co.  v.  Day,  50  Iowa, 
250;  Peace  River  Phosphate  Co.  v.  Grafllin  (C.  C.)  58  Fed.  550;  RUCilESTER 
LANTERN  CO.  v.  PRESS  CO..  135  N.  Y.  200,  31  N.  E.  1018;  Thomas.  B.  & 
W.  Mfg.  Co.  V.  Railway  Co.,  62  Wis.  642,  22  N.  W.  827.  51  Am.  Rep.  725;  Buf> 
falo  Eurb-Wire  Co.  v.  Phillips,  64  Wia  338,  25  N.  W.  20S. 


488  DISCHARGE   OF   CONTRACT.  (Ch.  11 

promise  was  broken  abruptly,  and  under  humiliating  circumstances, 
or  if  the  defendant  acted  maliciously  and  in  a  way  to  injure  the  plain- 
tiff's character,  exemplary  damages  may  be  recovered.^^* 

Assessment  by  the  Parties. 

The  parties  to  a  contract  frequently  assess  the  damages  at  which 
they  rate  a  breach  of  the  contract  by  one  or  both  of  them,  and  intro- 
duce their  assessment  into  the  terms  of  the  contract.  They  have  the 
right  to  do  this,  but,  as  we  have  already  seen,  they  cannot  provide  for 
a  penalty  to  be  paid  by  the  one  who  shall  break  the  contract.^ ^"^ 

Diificulties  in  Assessment — Speculative  Damages. 

The  mere  fact  that  the  ascertainment  of  the  damages  is  difficult 
cannot  deprive  him  of  his  right  to  whatever  damages  he  has  suffered 
as  the  natural  consequence  of  the  breach;  the  difficulty,  when  it 
arises,  must  be  met  by  the  jury.  Thus,  where  a  manufacturer,  who 
was  in  the  habit  of  sending  his  goods  for  exhibition  to  agricultural 
shows,  and  made  a  profit  by  the  practice,  intrusted  goods  to  a  carrier 
to  be  sent  to  a  show,  under  circumstances  which  should  have  brought 
his  object  to  its  notice,  and  they  delayed  the  goods  so  that  they  were 
too  late  for  exhibition,  it  was  held  that,  though  the  ascertainment  of 
damages  was  difficult  and  speculative,  this  was  no  reason  for  not  giv- 
ing damages.^®^  It  is  generally  held,  however,  that  while  profits  which 
would  have  been  realized  but  for  the  breach  of  contract  may  be  allowed 
as  a  proper  element  of  damages,  they  must  be  proved  with  reasonable 
certainty,  and  not  be  merely  conjectural,  and  that  speculative  or  con- 
tingent profits  cannot  be  recovered.^®^ 

289  Southard  v.  Rexford,  6  Cow.  (N.  Y.)  254;  Thorn  v.  Knapp,  42  N.  Y.  474, 
1  Am.  Rep.  561;  Johnson  v.  T-ravis,  33  Minn.  231,  22  N.  W.  624;  Mcrherson  v. 
Ryan,  59  Mich.  33,  26  N.  W.  321;  Hughes  v.  Nolte,  7  Ind.  App.  526,  34  N.  E. 
745.     Cf.  Clement  v.  Brown,  57  Minn.  314,  59  N.  W.  198. 

290  Ante,  p.  411. 

2P1  Simpson  v.  Railway  Co.,  1  Q.  B.  Div.  274.  And  see  WAKEMAN  v. 
MANUFACTURING  CO.,  101  N.  Y.  205,  4  N.  E.  264,  54  Am.  Rep.  676 ;  Swain 
V.  Sehieffelin,  134  N.  Y.  471,  31  N.  E.  1025,  18  L.  R.  A.  385. 

292  Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Dennis  v.  Maxfleld,  10 
Allen  (Mass.)  138 ;  U.  S.  v.  BEHAN,  110  U.  S.  338,  4  Sup.  Ct.  81,  28  L.  Ed.  168 ; 
Howard  v.  Manufacturing  Co.,  139  U.  S.  199,  11  Sup.  Ct.  500,  35  L.  Ed. 
147;  Brigham  v.  Carlisle,  78  Ala.  243,  50  Am.  Rep.  28;  Fairchild  v.  Rogers, 
32  I\Iinn.  209,  20  N.  W.  191;  Martin  v.  Deetz,  102  Cal.  55,  36  Pac.  368,  41  Am. 
St.  Rep.  151;  Mtaa  Life  Ins.  Co.  v.  Nexsen,  84  Ind.  347,  43  Am.  Rep.  91; 
Allis  V.  McLean,  48  Mich.  428,  12  N.  W.  640;  Howe  Mach.  Co.  v.  Bryson,  44 
Iowa,  159,  24  Am.  Rep.  735;  Hubbard  v.  Rowell,  51  Conn.  423;  Rice  v.  Caudle, 
71  Ga.  605 ;  Lewis  v.  Insurance  Co.,  61  Mo.  534 ;  Danforth  v.  Railroad  Co.,  99 
Ala.  331,  13  South.  5L 


260)  REMEDIES   ON    BREACH   OF   CONTUAGT.  481) 


SAME-SPECIFIC  PERFORMANCE. 

260.  A  suit  in  equity  will,  as  a  rule,  lie  for  specific  performance  of  a 
contract,  except — 

EXCEPTIONS— (a)    W^liere  there  is  an  adequate  remedy  at  law. 

(b)  'Where  the  matter  of  the  contract  is  such  that  the  court  can- 
not supervise  performance. 

(o)  'Where  the  enforcement  of  specific  performance  would  be  in- 
equitable and  unjust. 

The  courts  of  common  law  have  no  power  to  compel  specific  per- 
formance, and  specific  performance  is  often  the  only  adequate  remedy. 
This  remedy,  however,  is  given  by  courts  of  equity.  They  can  enforce 
a  promise  to  do  a  thing  by  a  decree  for  specific  performance,  and  a 
promise  to  forbear  from  doing  a  thing  by  an  injunction. 

The  exercise  of  this  jurisdiction  by  courts  of  equity  is  limited  by 
certain  rules,  some  of  which  we  have  already  noticed  in  other  connec- 
tions.^^^  The  subject  being  one  relating  more  peculiarly  to  the  juris- 
diction of  courts  of  equity,  we  can  only  deal  with  it  in  a  very  general 
way. 

Adequate  Remedy  at  Law. 

A  suit  for  specific  performance  will  not  lie  if  there  is  an  adequate 
remedy  at  law.  It  will  only  lie  where  the  loss  cannot  be  compensated 
in  damages. ^^*  This  rule  is  well  illustrated  by  the  dififerent  attitudes 
which  the  court  has  assumed  in  this  matter  towards  contracts  for  the 
sale  of  land  and  contracts  for  the  sale  of  goods.  One  who  has  con- 
tracted to  purchase  a  particular  piece  of  land  may  be  unable  to  get  its 
exact  counterpart  elsewhere,  with  the  same  surroundings  and  con- 
veniences. Courts  of  equity  will  therefore  generally  grant  specific  per- 
formance of  contracts  for  the  sale  of  land.^"'^  On  the  other  hand, 
goods  of  the  kind  and  quality  contracted  for  are  generally  to  be  pur- 
chased elsewhere.  Hence  specific  performance  of  a  contract  for  the 
sale  of  goods  will  not  be  decreed,^®®  except  in  the  case  of  specific  chat- 

203  Ante,  pp.  60,  163,  235. 

294  Campbell  v.  Potter,  147  111.  576,  35  N.  E.  364;  American  Box  Mach. 
Co.  V.  Crossman,  61  Fed.  888,  10  C.  C.  A.  146 ;  Gove  v.  City  of  Biddleford,  85 
Me.  393,  27  Atl.  264;    Porter  v.  Water  Co.,  84  Me.  iur>.  24  Atl.  814. 

20B  Eastern  C.  R.  Co.  v.  Hawkes,  5  H.  L..  331,  359;  Johnston  v.  "Wadswortb, 
24  Or.  494,  34  Pac.  13.  But  courts  of  equity  will  not  even  compel  siwcifio 
performance  of  a  contract  to  buy  land  simply  to  enforce  payment  of  the 
purchase  money.     Holley  v.  Anness,  41  S.  C.  349,  19  S.  E.  646. 

296  Cuddee^■.  Rutter,  1  P.  Wuis.  569,  5  Vin.  Abr.  p.  538,  §  21,  1  White  &  T. 
Lead.  Cas.  Eq.  [4th  Am.  Ed.]  1063;  Lining  v.  Geddes,  1  McCord,  Eq.  (S.  C.) 
304.  16  Am.  Dec.  006;  Cowles  v.  Whitman,  10  Conn.  121,  25  Am.  Dec.  60: 
K'imball  v.  Morton,  5  N.  J.  Eq.  26,  53  Am.  Dec.  621;  Rollins  Inv.  Co.  v. 
George  (C.  C.)  48  Fed.  776. 


490  DISCHARGE   OF   CONTRACT.  (Cll.  11 

tels,  the  value  of  which,  either  from  their  beauty,  the  interest  attaching 
to  them,  or  some  other  cause,  cannot  be  represented  by  damages. ^®^ 

Inability  of  Court  to  Supervise  and  Insure  Performance. 

A  court  of  equity  will  not  decree  specific  performance  where  the 
matter  of  the  contract  is  such  that  it  cannot  supervise  or  insure  its 
execution.^ ^^  This  rule  is  illustrated  by  the  refusal  of  courts  of  equity 
to  decree  specific  performance  of  contracts  involving  personal  serv- 
ices.-^® An  injunction  may  be  used  to  enforce  a  promise  or  covenant 
to  forbear.  It  has  been  held  that  where  an  executory  contract  con- 
tains both  positive  and  negative  promises,  and  the  court  is  unable  to 
enforce  the  former,  it  may  nevertheless  enforce  the  latter  by  an  injunc- 
tion. Thus  where  a  professional  singer  was  sued  by  the  proprietor 
of  a  theater  for  specific  performance  of  a  contract  to  sing  at  his  theater 
upon  certain  terms,  and  during  a  certain  period  to  sing  nowhere  else, 
the  court  refused  to  enforce  so  much  of  the  contract  as  related  to  the 
promise  to  sing,  but  enforced  the  promise  not  to  sing  elsewhere  by 
granting  an  injunction. ^"^ 

Specific  Performance  Discretionary. 

The  enforcement  of  specific  performance  is  discretionary  with  the 
court,  and  the  court  must  be  satisfied  not  only  that  there  was  a  valid 
contract,  but  that  its  enforcement  would  be  equitable  and  just.^"'^  "It 
must  appear  that  the  enforcement  will  work  no  hardship  and  injustice, 
for,  if  that  result  would  follow,  the  court  will  leave  the  parties  to  their 

297  De  Mattos  v.  Gibson,  4  De  Gex  &  J.  276;  Buxton  v.  Lester,  3  Atk.  384; 
Hapgood  V.  Rosenstock  (C.  C.)  20  Fed.  86;  Adams  v.  Messinger,  147  Mass.  185, 
17  N.  E.  491,  9  Am.  St.  Rep.  679;  Hull  v.  Pitrat  (C.  G.)  45  Fed.  94;  Eaton,  Eq. 
527. 

298  Wilson  V.  Railway  Co.,  L.  R.  9  Ch.  App.  279;  Grape  Creek  Coal  Co.  v. 
Spellman,  39  111.  App.  6.30. 

290  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616;  Webb  v.  England,  29  Beav. 
44;  Clark's  Case,  1  Blackf.  (Ind.)  122,  12  Am.  Dec.  213;  Marble  Co.  v.  Ripley, 
10  Wall.  339,  19  L.  Ed.  955;  Wm.  Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20 
Atl.  467,  7  L.  R.  A.  779,  18  Am.  St.  Rep.  27S. 

300  Lumley  t.  Wagner,  1  De  Gex,  M.  &  G.  616.  And  see  McCaull  v.  Bra- 
ham  (C.  C.)  16  Fed.  37;  Duff  v.  Russell,  133  N.  Y.  678,  31  N.  E.  622;  CORT  v. 
LASSARD.  IS  Or.  221,  22  Pac.  10.54,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726; 
Port  Clinton  R.  Co.  v.  Railroad  Co.,  13  Ohio  St.  544;  Daly  v.  Smith,  38  N.  Y. 
Super.  Ct.  158,  49  How.  Prac.  150;  Richardson  v.  Peacock,  26  N.  J.  Eq. 
40.  Cf.  Davis  v.  Foreman  [1894]  3  Ch.  6.54;  Rice  v.  D'Arville,  162  Mass.  559, 
39  N.  E.  ISO;  Welty  v.  .Jacobs,  171  111.  624,  49  N.  E.  723,  40  L.  R.  A.  98.  The 
principal  case  has  been  declared  an  anomaly  to  be  followed  in  cases  like  it, 
but  which  it  would  be  dangerous  to  extend.     Anson,  Cont.  (8th  Ed.)  314. 

301  Webster  v.  Cecil,  30  Beav.  62;  Hennessey  v.  Wool  worth,  128  U.  S.  438. 
9  Sup.  Ct.  109,  32  L.  Ed.  .500;  Conger  v.  Railroad  Co.,  120  N.  Y.  29.  23  N.  E. 
983 ;  Mansflold  v.  Sherman,  81  Me.  365,  17  Atl.  300 ;  Combs  v.  Scott,  76  Wis. 
662,  45  N.  W.  532. 


§§  261-262)  REMEDIES   ON    BREACH    OF   CONTRACT.  401 

remedy  at  law,  unless  the  granting  of  the  specific  relief  can  be  ac- 
complished v/ith  conditions  which  will  obviate  that  result."  *°* 


SAME— DISCHARGE  OF  RIGHT  OF  ACTION. 

261.    The  right  of  action  arising  from  a  breach  of  contract  can  only 
be  discharged  in  one  of  three  i;7ays: 

(a)  By  the   consent  of  the  parties. 

(b)  By  the  judgment  of  a  court  of  competent  jurisdiction. 

(c)  By  lapse  of  time. 


SAME— DISCHARGE  BY  THE  CONSENT  OF  THE  PARTIES. 

262.    Discharge  by  the  consent  of  the  parties  may  take  place  either — 

(a)  By  release,  -which  is  a  gratuitous  xeaiver  of  the  right  of  action, 

and  must  therefore  be  under  seal. 

(b)  By  accord  and  satisfaction,  xrhich  is  an  agreement  to  discharge 

the   right    of   action   based   on   a   consideration  vrhich    is    exe- 
cuted.303 

Release. 

A  release  is  a  gratuitous  waiver  by  a  person  of  a  right  of  action  ac- 
cruing to  him  from  a  breach  of  a  promise  made  to  him.  There  is  no 
consideration  for  the  waiver,  and  therefore,  to  be  binding,  it  is  neces- 
sary that  it  shall  be  under  seal.^°*  As  we  have  seen,  a  gratuitous 
promise  to  forbear  from  the  exercise  of  a  right,  if  it  is  not  under  seal, 
is  not  enforceable. ^°' 

Accord  and  Satisfaction. 

An  accorjl_  and  aatisJaction  is  an  agreement,  wliich  need  nnt  be  under 
seal^the  effect  of  which  is  to  discharge  the  right  of  action  i^  ,^,  c:^scd  by 
one  of  the  parties  against  the  other.  In  order  to  have  this  effect,  there 
must  be  a  consideration  for  the  promise  of  the  party  entitled  to  sue. 
It  is  further  necessary  that  the  accord  shall  be  executed ;  otherwise 
the  agreement  is  an  accord  without  a  satisfaction.^"®     The  promisor 

802  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501. 

303  Anson,  Cont.  (4tb  Ed.)  314. 

304  MITCHELL  v.  HAWLBY,  4  Denio  (N.  Y.)  414,  47  Am.  Dec.  2G0;  Jack- 
sou  V.  Stackhouse,  1  Cow.  (N.  Y.)  122,  13  Am.  Dec.  514;  Shaw  v.  Pratt.  22 
Pick.  (Mass.)  308;  HUNT  v.  BROWN,  146  Mass.  253,  15  N.  E.  587;  lugersoll 
T.  Martin,  58  Md.  67,  42  Am.  Rep.  322;    KIDDER  v.  KIDDER,  33  Pa.  26S. 

305  Ante,  pp.  126-133. 

308  Bayley  v.  Homan,  3  Bing.  N.  C.  915;  LYNN  v.  BRUCE.  2  H.  Bl.  317; 
Kromer  v.  Heim,  75  N.  Y.  574,  31  Am.  Rep.  491;  Hosier  v.  Hursh,  151  Pa. 
415,  25  Atl.  52;  Costello  v.  Cady,  102  Mass.  140;  Petty  v.  Allen,  134 
Mass.  265;  Flack  v.  Garland.  8  Md.  188;  Simmons  v.  Clark,  56  111.  96; 
Pettis   V.    Ray,    12    R.    I.    344;     Hoxsie    v.   Limibcr    Co.,    41    Minn.    548,    43 


492  DISCHARGE   OF   CONTRACT.  (Ch.  11 

must  have  obtained  what  he  bargained  for  in  lieu  of  his  right  of  ac- 
tion, and  he  must  have  obtained  something  more  than  a  mere  fresh 
arrangement  as  to  the  payment  or  discharge  of  the  existing  liabiUty.^**'' 
It  is  not  meant  by  this  that  a  promise  can  never  be  received  as  a  satis- 
faction. If  the  promise  and  not  its  performance  is  accepted  in  satisfac- 
tion, it  is  a  good  accord  and  satisfaction  without  performance.  In 
other  words,  a  jiew  contract  agreed  upon,  and  accepted,  as  a  satisfac- 
tion, operates  as  an  accord  and  satisfaction.^"^  The  satisfaction  may 
consist  in  the  acquisition  of  a  new  right  against  the  debtor,  as  the  re- 
ceipt from  him  of  a  negotiable  instrument  in  Heu  of  payment;  ^°^  or 
of  new  rights  against  the  debtor  and  third  persons,  as  in  the  case  of  a 
composition  with  creditors;  ^^'^  or  of  something  different  in  kind  from 
that  which  the  debtor  was  bound  by  the  original  contract  to  per- 
form ;^^^  but  it  must  have  been  taken  by  the  creditor  as  satisfaction 
for  his  claim  in  order  to  operate  as  a  valid  discharge.  There  can  be 
no  satisfaction  without  accord  or  agreement  to  that  effect.^  ^^ 

N.  W.  476:    Schlitz  v.  Meyer,  61  Wis.  41S,  21  N.  W.  243:    Ck)bb  v.  Malone, 

86  Ala.  571,  6  South.  6;  Ogilvie  v.  Hallam,  58  Iowa,  714,  12  N.  W. 
730;  Browning  v.  Grouse,  43  Mich.  489,  5  N.  W.  604;  Troutman  v.  Lucas,  63 
Ga.  466;  Frost  v.  Jolmson,  8  Ohio,  393;  Simmons  v.  Hamilton,  56  Cal.  493; 
Johnson's  Adm'r  v.  Hunt.  81  Ky.  321;  Hemingway  v.  Stansell,  106  U.  S.  399, 
1  Sup.  Ct.  473,  27  L.  Ed.  245;  Yazoo  &  M.  V.  R.  Co.  v.  Fulton,  71  Miss.  385,  14 
South.  271;    Welch  v.  Miller,  70  Vt.  108,  39  Atl.  749. 

3  07  McManus  v.  Bank,  L.  R.  5  Exch.  65. 

308BABCOCK  V.  HAWKINS,  23  Vt.  561;  MOREHOUSE  v.  BANK,  98 
N.  Y.  503;  Whitney  v.  Cook.  53  Miss.  551;  Jones  v.  Perkins,  29  Miss.  139, 
64  Am.  Dec.  136;  Heiru  v.  Carron,  11  Smedes  &  M.  (Miss.)  361,  49  Am.  Dec. 
65:  Christie  v.  Craige,  20  Pa.  430;  Bradshaw  v.  Davis,  12  Tex.  336;  Bennett 
V.  Hill,  14  R.  I.  322;  SCHWEIDER  v.  LANG,  29  Minn.  254,  13  N.  W.  33, 
43  Am.  Rep.  202;  Sioux  City  Stock-Yards  Co.  v.  Packing  Co.,  110  Iowa, 
396,  81  N.  W.  712. 

309  Goddard  v.  O'Brien,  9  Q.  B.  Div.  37;  Witherby  v.  Mann,  11  Johns.  (N. 
Y.)  518;  Guild  v.  Butler,  127  Mass.  386;  Varney  v.  Conery.  77  Me.  527,  1  Atl. 
683;  Yates  v.  Valentine,  71  111.  643;  Mason  v.  Campbell,  27  Minn.  54,  6  N. 
W.  405. 

310  Ante,  p.  133.  3"  Ante,  p.  131. 

312  Preston  v.  Grant,  34  Vt.  201;  Boston  Rubber  Co.  v.  Wringer  Co.,  58  Vt. 
551,  5  Atl.  407.  Thus  it  is  held  in  England  that  if  money  or  a  check  is  ten- 
dered in  full  satisfaction  of  an  unliquidated  demand,  and  is  kept  by  the  cred- 
itor, it  is  a  question  of  fact  whether  or  not  he  accepts  the  payment  as  on  the 
terms  offered,  1.  e.,  whether  he  assents  to  an  accord  and  satisfaction.  DAY 
V.  McLEA,  22  Q.  B.  Div.  610.  To  the  same  effect,  Tompkins  v.  Hill,  145 
Mass.  379.  14  N.  E.  177.  The  American  cases,  however,  generally  hold, 
anomalously,  that  in  such  case  an  accord  and  satisfaction  results,  even  though 
the  creditor  insists  that  the  payment  is  accepted  merely  on  account.  Fuller 
v.  Kemp.  138  N.  Y.  231,  33  N.  E.  1034,  20  L,  R.  A.  785;  NASSOIY  v.  TOMLIN- 
SON,  148  N.  Y.  326.  42  N.  E.  715,  51  Am.  St.  Rep.  695;    Laroe  v.  Dairy  Co.. 

87  App.  Div.  585,  84  N.  Y.  Supp.  609  (cf.  Mack  v.  Miller.  87  App.  Div.  359, 
84  N.  Y.  Supp.  440) ;  Anderson  v.  Granite  Co.,  92  Me.  429,  43  Atl.  21,  69  Am. 
St.  Rep.  522;   Rosema  v.  Porter,  112  Mich.  13,  70  N.  W.  316;   Lapp  v,  Smith, 


§  263)  REMEDIES   ON    liKEACII    OF   CONTUACT.  493 

We  have  already  fully  considered  the  question  of  the  sufficiency  of 
the  consideration.^  ^^ 


SAME— DISCHARGE  BY  JUDGMENT. 

263.  Tlie  right  of  a  party  to  sue  for  breach  of  contract  is  discharged 
by  the  final  judgment  of  a  court  of  competent  jurisdiction 
either  in  his  favor  or  against  him.  In  the  former  case  the  cause 
of  action  merges  in  the  judgment,  \irhile  in  the  latter  the  judg- 
ment estops  him.^i^ 

When  the  party  entitled  to  sue  for  the  breach  of  a  contract  made 
with  him  brings  an  action  in  a  court  of  competent  jurisdiction,  and 
recovers  a  judgment,  his  right  of  action  is  thereby  discharged.  It 
merges  in  the  judgment.^^"^  The  result  of  legal  proceedings  taken 
upon  a  broken  contract  may  be  thus  sunmiarized  :  'i  he  bringmg  of  an 
action  has  not  of  itself  any  effect  in  discharging  the  right  of  action. 
Another  action  may  be  brought  for  the  same  cause  in  another  court, 
and,  though  proceedings  in  such  an  action  would  be  stayed,  if  they  are 
merely  vexatious,  yet  if  action  for  the  same  cause  is  brought  in  a  home 
court  and  in  a  foreign  court,  the  fact  that  the  defendant  is  being  sued 
in  the  latter  would  not  in  any  way  affect  his  position  in  the  former.^  ^® 
When  the  action  is  pursued  to  judgment,  a  judgment  adverse  to  the 
plaintiff  discharges  the  obligation  by  estoppel.  The  plaintiff  cannot 
bring  another  action  for  the  same  cause  so  long  as  the  judgment 
stands.^ ^^     The  matter  is  res  judicata.     The  judgment  may  be  reversed 

183  111.  179,  55  N.  E.  717;  HULL  v.  JOHNSON,  22  R.  I.  66,  46  Atl.  182;  Tal- 
bott  V.  Englisli,  156  Ind.  2U9,  59  N.  E.  857.  Aud  see  Prestou  v.  Grant,  o4  \t. 
201. 

313  Ante,  pp.  129-132.  3i4  Anson,  Cont.  (-Ith  Ed.)  315,  316. 

315  iiason  V.  Eldred,  6  Wall.  231,  18  L.  Ed.  783;  Smith  v.  Black,  9  Serg.  &  K. 
(Pa.)  142,  11  Am.  Dec.  6S6;  Bank  of  North  America  v.  Wheeler,  28  Conn. 
433,  73  Am.  Dec.  683;  jNIILLER  v.  COVERT,  1  Wend.  (N.  Y.)  487;  Bender- 
nagle  v.  Cocks,  19  Wend.  (N.  Y.)  207,  32  Am.  Dec.  448;  Turner  v.  Plowden,  5 
Gill  &  J.  (Md.)  52,  23  Am.  Dec.  590;  Oliver  v.  Holt,  11  Ala.  574,  46  Am.  Dec. 
288;  Boynton  v.  Ball,  105  111.  627;  Piko  v.  McDonald,  32  Me.  418,  54  Am.  Dec. 
597;   Barnes  v.  Gibbs,  31  N.  J.  Law,  317,  86  Am.  Dec.  210. 

316  Hollister  v.  Stewart,  111  N.  Y.  644,  19  N.  E.  782;  Wood  v.  Gamble, 
11  Cush.  (Mass.)  8,  59  Am.  Dec.  135;  O'Reilly  v.  Railroad  Co.,  16  R.  I.  388, 
17  Atl.  171,  906,  19  Atl.  244,  5  L.  R.  A.  364,  6  L.  R.  A.  719 ;  Sandwich  Mfg.  Co. 
V.  Earl,  56  Minn.  390,  57  N.  W.  938;  McJilton  v.  Love,  13  111.  486,  54  Am.  Dec. 
449;  Smith  v.  Lathrop,  44  Pa.  326,  84  Am.  Dec.  448;  Davis  v.  Morton,  4  Bush 
(Ky.)  442,  96  Am.  Dec.  309.     This  docs  not  apply  to  actions  in  rem. 

31T  Patrick  v.  Shaffer,  94  N.  Y.  423;  Norton  v.  Doherty,  3  Gray  (Mass.) 
372,  63  Am.  Dec.  758;  Winslow  v.  Stokes,  48  N.  C.  2So,  67  Am.  Dec.  242; 
Russell  V.  Place,  94  U.  S.  606,  'M  L.  Ed.  214;  Cromwell  v.  Sac  Co.,  94  U.  S. 
351,  24  L.  Ed.  195;    Nispel  v.  Laparle,  74  111.  300. 


494  DISCHARGE   OF   CONTRACT.  (Ch.  11 

by  a  higher  court,  or  a  new  trial  granted,  and  the  parties  may  be  re- 
mitted to  their  original  positions.^ ^* 

An  adverse  judgment,  in  order  to  discharge  the  obligation  by  es- 
topping the  plaintiff  from  reasserting  his  claim,  must  have  proceeded 
upon  the  merits  of  the  case  and  must  be  final.  Where  the  litigation 
\has  ended  in  a  discontinuance  or  a  nonsuit,  or  on  demurrer  for  defect 
\n  pleading,  so  that  an  actual  decision  on  the  merits  has  not  been  reach- 
Ad;  or  the  finding  of  a  judge  or  referee  has  not  passed  into  a  judg- 
ijnent,  and  so  become  absolutely  fixed  and  final, — the  proceedings  have 
ijio  conclusive  character,  and  cannot  operate  as  a  bar.^^^  So,  if  a  plain- 
tiff fails  in  his  action  because  he  has  sued  in  a  wrong  character,  or 
because  he  sued  at  a  wrong  time,  as  in  case  of  an  action  brought  be- 
fore fulfillment  of  a  condition  in  the  contract,  such  as  the  expiration 
of  a  period  of  credit  on  the  sale  of  goods, — a  judgment  proceeding  on 
these  grounds  will  not  prevent  him  from  succeeding  in  a  second  ac- 
tion.^2*>  It  is  also  necessary  that  the  judgment  shall  have  been  ren- 
dered by  a  court  of  competent  jurisdiction  and  shall  be  otherwise 
valid.^2^  As  has  been  said,  if  the  plaintiff  succeeds,  and  obtains  judg- 
ment in  his  favor,  the  right  of  action  merges  in  the  judgment,  and  is 
discharged.  A  new  obligation  arises  in  the  judgment,  a  form  of  the 
so-called  "contract  of  record, — a  quasi  contractual  obligation."  The 
obligation  arising  from  the  judgment  may  be  discharged  by  payment 
of  the  judgment  debt,  or  by  satisfaction  obtained  by  the  creditor  from 
the^  jDroperty  of  the  debtor  by  the  process  of  execution,  or  an  action 
quasi_ex_contractu  may  be  brought  upon  it. 

318  Clark  V.  Bowen,  22  How.  270,  16  L.  Ed.  337;  Mattingly  v.  Lewisohn,  13 
Mont.  508,  35  Pac.  111. 

310  Webb  V.  Buckelew,  82  N.  Y.  555;  Audubon  v.  Insurance  Co.,  27  N.  Y. 
216;  Leonard  v.  Barker,  5  Denio  (N.  Y.)  220;  Atkins  v.  Anderson,  63  Iowa, 
7.39,  19  N.  W.  323;  Taylor  v.  Larkin,  12  Mo.  103,  49  Am.  Dec.  119;  Gould  v. 
Railroad  Co.,  91  U.  S.  520.  23  L.  Ed.  416;  Linington  v.  Strong,  111  111.  152; 
Gage  V.  Ewing,  114  111.  15,  28  N.  E.  379;  Scbm-meier  v.  Johnson,  10  Minn. 
319  (Gil.  2.50);  Haws  v.  Tiernan,  53  Ta.  192;  Gallup  v.  Lichter,  4  Colo.  App. 
296,  35  Pac.  985;  Baugh  v.  Baugh,  4  Bibb  (Ky.)  550;  Pierce  v.  Hilton,  102  Cal. 
276,  36  Pac.  595;    Si  vers  v.  Si  vers,  97  Cal.  518,  32  Pac.  571. 

320  Bull  V.  Hopkins,  7  Johns.  (N.  Y.)  22;  McFarlane  v.  Cushman,  21  Wis. 
406;  Brackett  v.  People.  115  111.  29,  3  N.  E.  723;  Rodgers  v.  Levy,  36  Neb, 
601,  54  N.  W.  1080;  Baxter  v.  Aubrey,  41  Mich.  13,  1  N.  W.  897;  Wood  v. 
Faut,  55  IMich.  185,  20  N.  W.  897. 

321  Hickey  v.  Stewart,  3  How.  750,  11  L.  Ed.  814;  Stowell  v.  Chamberlain, 
60  N.  Y.  272;  Reading  v.  Price,  3  J.  J.  Marsh.  (Ky.)  62,  19  Am.  Dec.  162; 
Mount  v.  Scholes,  120  111.  394.  11  N.  E.  401;  Richardson  v.  Aiken,  84  111.  221; 
Oleson  v.  Merrihew,  45  Wis.  397. 


§§  204-205)  REMEDIES   ON    BREACH    OF   CONTRACT.  495 


SAME— LAPSE   OF  TIME. 

264.  Lapse  of  time  may  affect  tlie  remedy  of  the  parties  to  a  contract, 

but,  in  tlie  absence  of  statutory  provision,  it  cannot  affect  their 
rights. 

265.  In  all  the  states  there  are  statutes  of  limitation  barring  actions 

on  contracts  unless  they  are  brought  veithin  a  prescribed  time. 

Laches  may  bar  the  right  to  rehef  in  equity,'^^  and  at  law  a  cred- 
itor's delay  in  asserting  his  claim  may  raise  a  rebuttable  presumption 
that  the  debt  is  paid;^-^  but,  aside  from  this,  lapse  of  time,  m  the 
absence  of  statutory  provision,  does  not  affect  the  rights  of  the  parties 
to  a  contract.  The  rights  arising  from  a  contract  are  of  a  permanent 
and  indestructible  character,  unless  either  from  the  nature  of  the  con- 
tract or  from  its  terms  it  is  limited  in  point  of  duration. ^^* 

In  all  states,  however,  there  are  "statutes  of  limitations,"  which  pro- 
vide that  actions  on  contracts  must  be  brought  within  a  certain  number 
of  years,  or  be  barred.  The  time  limited  varies  in  the  different  states. 
In  some  states  no  distinction  with  respect  to  the  time  limited  is  made 
between  the  different  kinds  of  contracts,  while  in  others  such  a  distinc- 
tion is  made.  These  statutes  vary  in  other  respects,  and  only  brief 
mention  of  some  of  their  more  general  provisions  can  be  made. 

Disabilities  and  Exceptions. 

Though,  as  a  rule,  the  statute  begins  to  run  as  soon  as  the  cause  of 
action  accrues,  and  continues  to  run  until  the  bar  is  complete,  there 
are  certain  circumstances  which  suspend  its  operation.  It  is  generally 
provided  that  infancy,  coverture,  insanity,  or  imprisonment  shall,  where 
the  person  entitled  to  sue  is  aft"ected  by  any  of  these  disabilities  when 
the  cause  of  action  accrues,  suspend  the  operation  of  the  statute  until 
the  disability  is  removed.  A  disability  arising  after  the  period  of  limi- 
tation has  commenced  to  run  will  not  affect  the  operation  of  the  stat- 
ute. 

As  a  rule,  ignorance  that  a  right  of  action  exists  will  not  suspend 
the  operation  of  the  statute.     Where,  however,  that  ignorance  was  pro- 

322  Eads  V.  Williams,  4  De  Gex,  M.  &  G.  674;  Southcombe  v.  Bishop,  G 
Hare,  213;  Seculovich  v.  Morton,  101  Cal.  G73,  3G  Pac.  387.  40  Am.  St.  Rep. 
106;  Rogers  v.  Van  Nortwick,  87  Wis.  414,  58  N.  W.  757;  Hogan  v.  Kyle, 
7  Wash.  595,  35  Pac.  399,  38  Am.  St.  Rep.  910  ;  Cocanougher  v.  Green,  93  Ky.  519, 
20  S.  W.  542;  Rogers  v.  Saunders.  16  Me.  92,  33  Am.  Dec.  635;  Patterson  v. 
Martz,  S  Watts  (Pa.)  374,  34  Am.  Dec.  474. 

323  Williams  v.  Mitchell,  112  Mo.  300,  20  S.  W.  647;  Knight  v.  McKin- 
ney,  84  ISIe.  107,  24  Atl.  744;  Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  685,  23 
Am.  Dec.  748;  Atkinson  v.  Dance,  9  Yerg.  (Tenn.)  424,  30  Am.  Dec.  422; 
Stover  V.  Duren,  3  Strob.  (S.  C.)  448,  51  Am.  Dec.  634;  Walker  v.  Emerson,  20 
Tex.  706.  73  Am.  Dec.  207. 

324  Anson,  Cont.  (4th  Ed.)  316;  Llanelly  Ry.  &  Dock  Co.  v.  Railway  Co.. 
L.  R.  7   H.  L.  550,  567. 


496  DISCHARGE   OF   CONTRACT.  (Ch.  11 

duced  by  the  fraud  of  the  defendant,  and  no  reasonable  diligence  would 
have  enabled  the  plaintiff  to  discover  that  he  had  a  cause  of  action, 
the  statutory  period  commences  vi^ith  the  discovery  of  the  fraud. 

Acknowledgment  and  New  Promise. 

Ordinarily  the  statute  of  limitations  is  held  merely  to  bar  the  remedy, 
but  not  to  extinguish  the  right,  and  therefore  the  right  of  action,  after 
it  has  become  barred,  may  be  revived, ^^^  Where  a  simple  contract, 
for  instance,  has  resulted  in  a  money  debt,  the  right  of  action  may  be 
revived  by  subsequent  acknowledgment  or  promise.  In  some  juris- 
dictions there  are  statutory  provisions  requiring  that  the  acknowledg- 
ment or  promise,  to  be  effectual,  must  be  in  writing,  signed  by  the 
party  to  be  charged  or  his  duly-authorized  agent.  The  sort  of  ac- 
knowledgment or  promise  which  has  been  held  to  be  requisite  in  order 
that  a  simple  contract  debt  may  be  revived  so  as  to  start  the  running 
of  the  statute  anew  has  been  thus  described :  "There  must  be  one  of 
these  three  things  to  take  the  case  out  of  the  statute:  Either  there 
must  be  an  acknowledgment  of  the  debt,  from  which  a  promise  to  pay 
is  to  be  implied ;  or,  secondly,  there  must  be  an  unconditional  promise 
to  pay  the  debt ;  or,  thirdly,  there  must  be  a  conditional  promise  to  pay 
the  debt,  and  evidence  that  the  condition  has  been  performed."  ^^^ 

Same — Part  Payment. 

A  debt  barred  by  the  statute  may  also  be  revived  by  a  part  payment. 
A  payment_XjrLaccount-of--the-prijicipal,  or  a  payment  of  interest  on  the 
debt,  will  take  the  contract  out  of  the  statute.  It  is  provided  by  most, 
if  not  all,  of  the  statutes  requiring  a  new  promise  or  acknowledgment 
to  be  in  writing,  and  signed  by  the  promisor  or  his  agent,  that  nothing 
therein  contained  shall  take  away  or  lessen  the  effect  of  such  part  pay- 
ments. The  payment,  to  have  the  effect  of  reviving  the  debt,  must  be 
made  with  reference  to  the  original  debt,  and  in  such  a  manner  as  to 
amount  to  an  acknowledgment  of  it.^^'^ 

32  5  Campbell  v.  Holt,  115  U.  S.  620,  6  Sup.  Ct.  209,  29  L.  Ed.  483.  Contra, 
Pierce  v.  Seymour,  52  Wis.  272,  9  N.  W.  71,  38  Am.  Rep.  737. 

326  In  re  River  Steamer  Co.,  6  Ch.  App.  822,  828.  Some  courts  have  held 
that  a  mere  acknowledgment  of  the  debt  as  existing  is  sufHcient  to  re- 
move the  bar,  even  though  there  be  an  express  declaration  of  intention  not 
to  pay  it ;  but  most  courts  hold  that  this  is  not  enough  (regarding  the  statute 
as  one  of  repose  rather  than  one  of  presumption),  but  that  the  acknowledg- 
ment must  be  of  such  a  nature  as  to  show  that  the  debtor  intended  to  promise 
to  pay.  Biddel  v.  Brizzolara,  64  Cal.  354.  30  Pac.  609;  Phelan  v;  Fitzpatrick, 
84  Wis.  240,  54  N.  W.  G14;  Heany  v.  Schwartz,  155  Pa.  154,  25  Atl.  1078;  Perry 
V.  Chesley,  77  Me.  393;  Hussey  v.  Kirkman,  95  N.  C.  63.  As  to  conditional 
promises,  see  Boyntou  v.  Moulton,  159  Mass.  248,  34  N.  E.  361. 

327  Waters  v.  Tompkins,  2  Cromp.,  M.  &  R.  722;  Miner  v.  Lorman,  56  Mich. 
212,  22  N.  W.  205;  State  v.  Corlies,  47  N.  J.  Law,  108;  Sears  v.  Hicklin, 
3  Colo.  App.  331,  33  Pac.  137;  Benton  v.  Holland,  58  Vt.  533,  3  Atl.  322: 
Blaskower  v.  Steel,  23  Or.  100,  31  Pac.  253. 


§  2GG)  AGENCY.  iUT 

CHAPTER   Xn. 

AGENCY. 

266.  Creation  of  the  Relation — Capacity  of  Parties. 

267.  How  tlie  Relation  may  Arise. 
268-269.             Form  of  Authority. 

270.  Agency  by  Estoppel. 

271.  Ratification. 

272-273.     Effect  of  Relation— Rights  and  Liabilities  of  Principal  and  Agent 
inter  Se. 

274.  Rights  and  Liabilities  as  to  Third  Persons — Named  Principal. 

275.  Name  of  Principal  Undisclosed. 
27G.  Existence  of  Principal  Undisclosed. 

277.  Fraud  of  Agent. 

278.  Determination  of  the  Relation- 

In  dealing  with  the  operation  of  contract  we  noted  that  though  one 
person  cannot,  by  contract  with  another,  confer  rights  or  impose  lia- 
bilities upon  a  third,  yet  that  one  person  may  represent  another  as 
being  employed  by  him  for  the  purpose  of  bringing  him  into  legal  re- 
lations with  a  third.  Employment  for  this  purpose  is  called  "agency." 
The  employer  is  called  the  "principal,"  and  the  employed  his  "agent." 
In  dealing  with  the  subject  we  shall  consider  (i)  the  mode  in  which 
the  relation  of  principal  and  agent  is  formed;  (2)  the  effects  of  the 
relation  when  formed;  and  (3)  the  mode  in  which  the  relation  is 
brought  to  an  end. 

CREATION  OF  THE  RELATION— CAPACITY  OF  PARTIES. 

266.    Any  one  may  be  an  agent,  but  no  one  can  appoint  an  agent  unless 
he  is  otbernrise  capable  of  contracting. 

The  contract  between  principal  and  agent  by  which  the  relation  is 
formed  is  like  any  other  contract,  in  so  far  as  the  principal  is  concerned, 
in  requiring  capacity  to  contract.  A  ;  ,  .■  n  who  is  incapable  of  enter- 
ing into  a  valid  contract  is  incapable  of  employing  an  agent  to  enter 
into  contracts  for  him.  Any  one,  however,  may  be  an  agent,  whether 
he  has  capacity  to  contract  or  not.^ 

1  Mechem,  Ag.  §§  44-68;  Governor  v.  Daily,  14  Ala.  409;  Lyon  v.  Kent,  45 
Ala.  656;  Talbot  v.  Bowen.  1  A.  K.  Marsh.  (Ky.)  436,  10  Am.  Dec.  747;  Chas- 
tain  V.  Bowman,  1  Hill  (S.  C.)  270;  Gray  v.  Otis,  11  Yt.  628;  Hopkins  v.  Mol- 
linieux,  4  Wend.  (N.  Y.)  465 ;  Butler  v.  Price,  110  Mass.  97.  As  to  capacity  of 
principal,  Tiffany,  Ag.  94;  capacity  of  agent.  Id.  105. 
Clabk  Cont.  (2d  Ed.)— S2 


498  AGENCY.  (Ch.  12 


SAME— HOW  THE  RELATION  MAY  ARISE. 

267.    Tlie  relation  of  principal  and  agent  arises  by  agreement  of  tlie 
parties,  evidenced  by  \(rords  or  by  conduct;    and  this  may  be: 

(1)  By   tbe  offer  of  a  promise   for  an  act  and  performance   of   the 

act;    or  from   consideration   executed  upon   request.      Cases    of 
gratuitous  agency  are  xpithin  this  class. 

(2)  By  the  ofPer  of   an  act  for  a  promise,   or  by  the  acceptance  of 

an  executed  consideration.      Such  are  cases  of  ratification. 

(3)  By  the   offer  of  a  promise   for  a  promise,   resulting  in  mutual 

promises. 

As  regards  the  mode  in  which  the  assent  of  the  parties  may  be 
signified,  we  may  accept  the  processes  described  in  treating  of  offer 
and  acceptance. 

It  may  arise  by  the  ofifer  of  a  promise  for  an  act,  and  acceptance  by 
performance  of  the  act,  or,  in  other  words,  from  consideration  executed 
upon  request,  as  where  services  are  asked  for  in  such  a  manner  as  to 
import  a  promise  of  indemnity  for  any  loss,  risk,  or  expense  incurred 
in  rendering  them.  Such  are  all  cases  of  gratuitous  agency,  in  which 
the  parties  do  not  create,  and  possibly  do  not  contemplate,  as  between 
themselves,  any  legal  relation  at  the  time  the  request  is  made.  The 
obligation  springs  up  when  the  service  is  rendered.  The  agent  then 
becomes  liable  for  misperformance  of  his  undertaking,  and  the  prin- 
cipal upon  his  implied  promise  of  indemnity.  It  is  said  that  a  man 
who  undertakes  to  do  a  service  for  another  gratuitously  is  liable  only 
for  misfeasance,  and  not  for  nonfeasance.  By  this  is  meant  that, 
where  a  man  undertakes  to  act  as  agent  or  to  do  any  other  service  for 
another  gratuitously,  the  contractual  liability  does  not  arise  until  he 
has  entered  upon  the  work,  and  so  affected  the  position  of  his  employer, 
and  that  up  to  that  moment  there  is  nothing  but  a  request  to  him  to 
do  the  work  importing  a  promise  to  indemnify  him  for  losses  which  he 
may  incur  in  doing  it.  He  is  not  bound  to  perform  the  services,  but, 
if  he  undertakes  or  enters  upon  the  performance  of  them,  he  must 
perform.  Where  a  person,  for  instance,  voluntarily  promises  another 
to  effect  insurance  on  the  latter's  property,  he  is  not  liable  if  he  neglects 
to  insure  at  all;  but  if  he  does  attempt  to  insure,  and  negligently,  by 
omitting  necessary  formalities,  takes  out  a  policy  upon  which  there 
can  be  no  recovery,  he  is  liable  for  the  loss.^ 

Again,  the  relation  may  be  created  by  the  offer  of  an  act  for  a  prom- 
ise, or  by  the  acceptance  of  an  executed  consideration.  Such  is  the 
case  where  a  person  without  authority  makes  a  contract  on  behalf  of 

2  Wilkinson  v.  Coverdale,  1  Bsp.  74.  And  see  THORNE  v.  DEAS,  4  Jotins. 
(N.  Y.)  84;    Nixon  v.  Bogin,  26  S.  C.  611,  2  S.  E.  302. 


§  267)  CREATION   OF   THE    RELATION.  49^ 

another,  and  the  latter  subsequently  accepts  the  bargain  or  ratifies  the 
contract.'     This  we  shall  presently  consider  more  at  length. 

Again,  the  relation  may  be  created  by  mutual  promises  to  employ 
and  remunerate  on  one  side,  and  to  do  the  work  required  on  the  other. 

Quasi  ex  Contractu — Necessity. 

Circumstances  operating  upon  the  conduct  of  the  parties  may  in  cer- 
tain cases  create  a  so-called  agency  from  necessity.  A  husband  is 
bound  to  support  his  wife,  and,  if  he  wrongfully  leaves  her  without 
means  of  subsistence,  she  becomes  "an  agent  of  jiecessity  to  supply  her 
wants^  upon  his  credit."  * 

A  carrier  of  goods  or  a  master  of  a  ship  may  under  certain  circum- 
stances, in  the  interest  of  his  employer,  pledge  his  credit,  and  will  be 
considered  to  have  his  authority  to  do  so.  So,  also,  where  goods  are 
shipped  to  a  person  unordered,  or  not  in  correspondence  with  samples, 
it  has  been  held  that  the  consignee  may,  in  the  interest  of  the  consignor, 
effect  a  sale  of  them.** 

In  none  of  these  cases  does  the  relation  of  principal  and  agent  arise 
from  agreement  It  is  imposed  by  law.  It  is  an  agency  quasi  ex  con- 
tractu. 

Partnership. 

The  contract  of  partnership  confers  on  each  partner  an  authority 
to  act  for  the  others  in  the  ordinary  course  of  the  partnership  business, 
and  each  partner  accepts  a  corresponding  liability  for  the  acts  of  his 
copartners.' 

»  Anson,  Cont.  (4th  Ed.)  333.  It  may  be  doubted  whether  the  analogy  of 
offer  and  acceptance  is  not  misleading.  The  proposed  principal  has  an  elec- 
tion to  treat  the  conti'act  as  his  own  or  not.     Tiffany,  Ag.  47. 

4  Eastland  v.  Burchell,  3  Q.  B.  Div.  436;  Seybold  v.  Morgan,  43  111.  App. 
39;  Pierpont  v.  Wilson,  49  Conn.  450;  Benjamin  v.  Dockham,  134  Mass.  418; 
Watkins  v.  De  Armond,  89  Ind.  553;  Eiler  v.  Cnill,  99  Ind.  375;  Ferren  v. 
Moore,  59  N.  H.  106. 

6  Kemp  V.  Pryor,  7  Ves.  246. 

6  Hawken  v.  Bourne,  8  Mees.  &  W.  710;  Tillier  v.  Whitehead,  1  Dall.  (Pa.) 
269,  1  L.  Ed.  131 ;  Lucas  v.  Bank,  2  Stew.  (Ala.)  280. 


500  AGENCY.  (Ch.  12 


SAME— FORM  OF  AUTKOHITY— ESTOPPEI.. 

268.  Authority  to  make  a  contract  under  seal  must  be  under  seal;   but 

an  agent  may,  under  parol  authority,  attach  a  seal  for  his  prin> 
cipal  in  his  presence  and  by  his  direction. 

269.  Authority  to  make  a  parol  contract,  Asrhether  the  contract  is  re- 

quired by  the  statute  of  frauds  to  be  in  vpriting  or  not,  may, 
unless  other\irise  provided  by  statute,  be  either  in  writing,  or 
by  word  of  mouth,  or  by  conduct. 

270.  ESTOPPEL.      A  person  may  by  his  wrords  or  conduct  be  estopped 

to  deny  that  another  person  has  authority  to  make  a  contract. 

In  order  that  an  agent  may  make  a  binding  contract  under  seal,  he 
must  receive  authority  under  sealJ  Such  a  formal  authority  is  called 
a  "power  of  attorney."  There  is  an  exception  to  this  rule,  and  it  is 
said  to  t)e  the  only  exception, — where  the  agent  affixes  the  seal  of  the 
principal  in  his  presence  and  by  his  direction.^ 

In  some  states  the  authority  of  an  agent  to  make  a  contract  for  the 
sale  of  land  is  required  by  the  statute  of  frauds  to  be  in  writing.®  And 
in  Kentucky  authority  to  bind  another  as  surety  is  required  by  statute 
to  be  in  writing.^  °  Aside  from  this  and  possibly  other  statutory  re- 
quirements, authority,  even  to  enter  into  a  contract  required  by  the 
statute  of  frauds  to  be  in  writing,  need  not  be  given  in  any  special  form. 
Writing  or  words  may  indicate  the  intention  of  the  parties.^^ 

T  Hanford  v.  SIcNair,  9  Wend.  (N.  Y.)  54;  Mackay  v.  Bloodgood,  9  Johns. 
(N.  Y.)  285;  Heath  v.  Nutter,  50  Me.  378;  Kime  v.  Brooks,  31  N.  C.  218; 
Rowe  V.  Ware,  30  Ga.  278;  Perry  v.  Smith,  29  N.  J.  Law,  74;  Won-all  v. 
Munn,  5  N.  Y.  229,  55  Am.  Dec.  330;  Shuetze  v.  Bailey,  40  Mo.  69;  Elliott  v. 
Stocks,  67  Ala.  336;  Gordon  v.  Bulkeley,  14  Serg.  &  R.  (Pa.)  331;  Wheeler  v. 
Nevius,  34  Me.  54;  Baker  v.  Freeman,  35  Me.  485;  Cummins  v.  Gassily,  o  B. 
Mon.  (Ky.)  74;  Cain  v.  Heard,  1  Cold.  (Tenn.)  163;  Graham  v.  Holt,  25  N. 
C.  300,  40  Am.  Dee.  408;  Maus  v.  Worthing,  4  111.  26.  Parol  authority  is 
sufficient  to  enable  an  agent  to  make  a  binding  parol  contract  for  a  convey- 
ance under  seal  by  the  principal,  though  the  agent  himself  could  not  so  convey 
without  authority  under  seal.  Ledbetter  v.  Walker,  31  Ala.  175;  Baum  v. 
Dubois,  43  Pa.  2G0;  Force  v.  Dutcher,  18  N.  J.  Eq.  401.  A  contract  under 
seal,  made  by  an  agent  under  parol  authority,  may  be  binding  as  a  parol 
contract  where  the  seal  may  be  rejected  as  sm-plusage.  Worrall  v.  Mimn,  5 
N.  Y.  229,  55  Am.  Dec.  330;  Tapley  v.  Butterfield,  1  Mete.  (Mass.)  515,  35  Am, 
Dec.  374;  DiCkerman  v.  Ashton,  21  Minn.  538;  Nichols  v.  Haines,  98  Fed.  692, 
39  C.  C.  A.  235.     Contra,  Wheeler  v.  Nevins,  34  Me.  54. 

8  Hanford  v.  INIcNair,  9  Wend.  (N.  Y.)  54;  Mackay  v.  Bloodgood,  9  Johus. 
(N.  Y.)  285;  Ball  v.  Dunsterville,  4  Term  R.  313;  Gardner  v.  Gardner,  5  Cush. 
(Mass.)  483,  52  Am.  Doc.  740. 

0  Ante,  p.  90. 

10  First  Nat.  Bank  v.  Gaines,  87  Ky.  597,  9  S.  W.  396. 

11  Ante,  p.  90;  Shaw  v.  Nudd,  8  Pick.  (Mass.)  9;  Merritt  v.  Clason,  12 
Johns.  fN.  Y.)  102,  7  Am.  Dec.  286;  Moreland  v.  Houghton,  94  Mich.  548,  54  N. 
W.  285;  Roehl  v.  Haumesser,  114  Ind.  311,  15  N.  E.  345;  Kennedy  v.  Ehlen, 
31  W.  Va.  540,  8  S.  E.  308;    Watson  v.  Sherman,  84  111.  267;    Blacknall  v. 


§§  2GS-270)  CREATION    OF   THE    RELATION.  501 

Same — Implied  AiUJwrity — Conduct. 

Not  only  is  this  true,  but  authority  may  be  impHed  from  conduct. 
If  a  master  allows  his  servant  or  child  to  habitually  purchase  goods 
for  him  from  a  tradesman  on  credit,  the  latter  becomes  entitled  to 
look  to  the  master  for  payment  for  such  things  as  are  supplied  to  the 
servant  or  child  in  the  ordinary  course  of  dealing.  So,  also,  with  hus- 
band and  wife.  Marriage  and  cohabitation  do  not  of  themselves  imply 
authority  in  the  wife  to  pledge  her  husband's  credit;  but,  if  the  wife  is 
allowed  to  deal  with  a  tradesman,  the  husband  will  be  considered  to 
have  held  her  out  as  his  agent,  and  will  be  liable  for  her  purchases. ^^ 
"If  a  tradesman  has  had  dealings  with  the  wife  upon  the  credit  of  the 
husband,  and  the  husband  has  paid  him  without  demurrer  in  respect 
of  such  dealings,  the  tradesman  has  the  right  to  assume,  in  the  absence 
of  notice  to  the  contrary,  that  the  authority  of  the  wife  which  the  hus- 
band has  recognized  continues.  The  husband's  quiescence  is  in  such 
cases  tantamount  to  acquiescence,  and  forbids  his  denying  an  authority 
which  his  own  conduct  has  invited  the  tradesman  to  assume."  ^^  There 
is  notliijig,Jiowever,jn  the  relation  of  master  and  servant,  parent  and  _ 
child,  or  husband  and  wife  to  give  an  inherent  authority  to  the  servants- 
child,  or  wife.^*  The  authority  can  only_jpring  from,  the  words-er-' 
conduct  of  the  master,  parents  ox  husband.  So,  also,  a  wife  may,  by 
her  conduct,  hold  out  and  constitute  her  husband  as  her  agent.  He 
has  no  inherent  authority  to  act  for  her,^^  but  if,  by  her  conduct,  she 
holds  him  out  as  her  agent,  she  will  be  bound  by  his  acts  -  within-the— 
scope  of  his  apparent  authority.^" 

TTies'e  relations  enable  an  authority  to  be  the  more  readily  inferred 

Parish.  59  N.  C.  70,  78  Am.  Dec.  239;  Curtis  v.  Blair,  26  Miss.  309,  59  Am. 
Dec.  257;  Worrall  v.  Munn.  5  N.  Y.  229,  55  Am.  Dec.  330;  Talbot  v.  Bowen, 
1  A.  K.  Marsh.  (Ky.)  436,  10  Am.  Dec.  747.  But  see  Simpson  v.  Commou- 
wealth,  89  Ky.  412.  12  S.  W.  630. 

12  Debenham  v.  Mellon,  5  Q.  B.  Div.  403;  Fenner  v.  Lewis,  10  Johns.  (N. 
Y.)  38;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384;  Gates  v. 
Brower,  9  N.  Y.  205,  59  Am.  Dec.  530;  Snell  v.  Stone,  23  Or.  327,  31  Pac.  663. 
So  where  a  husband  allows  his  wife  to  manage  his  farm  and  attend  to  the 
business  of  it.     Benjamin  v.  Benjamin,  supra. 

13  Debenham  v.  Mellon.  5  Q.  B.  Div.  403. 

14  Sawyer  v.  Cutting,  23  Vt.  48(5;  Johnson  v.  Stone,  40  N.  H.  197,  75  Am. 
Dec.  706;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384;  Owen  v. 
White,  5  Port.  (xVla.)  435,  30  Am.  Dec.  572;  Savage  v.  Davis,  18  Wis.  008; 
Gavin  v.  Bishoff,  80  Iowa,  605,  45  N.  W.  306;  Lane  v.  Ironmonger,  13  Mees. 
&  W.  368:    Gulick  v.  Grover,  31  N.  J.  Law,  182. 

15  Mead  v.  Spalding,  94  Mo.  43.  6  S.  W.  384;  Gilbert  v.  Deshon,  107  N. 
Y.  324,  14  N.  E.  318;  McLaren  v.  Hall,  26  Iowa,  297;  Price  v.  Seydel,  46 
Iowa,  696;  Trimble  v.  Thorson,  80  Iowa,  246.  45  N.  W.  742;  Runyon  v, 
Snell,  116  Ind.  164,  18  N.  E.  522.  9  Am.  St.  Rep.  839. 

16  Arnold  v.  Spm-r,  130  Mass.  .347;  Rankin  v.  West,  25  Mich.  195;  Lavassar 
v.  Washburne,  50  Wis.  200,  6  N.  W.  516. 


502  AGENCY.  (Ch.  12 

from  conduct;  but,  apart  from  them,  conduct  alone  may  create  so 
strong  an  appearance  of  authority  as  to  estop  the_paxty-i«uiL_d£iiying. 
^ts  existence.  ^'^  Thus,  where  the  plaintrff^Ead  allowed  a  broker  to  pur- 
chase hemp  for  him,  and  by  plaintiff's  desire  it  was  entered  in  the  place 
of  deposit  in  the  broker's  name.  The  broker  sold  the  hemp,  and  it 
was  held  that  plaintiff's  conduct  gave  him  authority  to  do  so.  "Stran- 
gers," it  was  said,  "can  only  look  to  the  acts  of  the  parties  and  to  the 
external  indicia  of  property,  and  not  to  the  private  communications 
which  may  pass  between  a  principal  and  his  broker;  and,  if  a  person 
authorize  another  to  assume  the  apparent  right  of  disposing  of  prop- 
erty in  the  ordinary  course  of  trade,  it  must  be  presumed  that  the  ap- 
parent authority  is  the  real  authority."  ^*  This  is  called  by  Sir  Wil- 
liam Anson  "agency  by  estoppel." 


SAME— RATIFICATION. 

271.   Ratification  is  Tirliere   a  person   adopts   a  contract  made   on  bis 
behalf  by  another  inritliont  authority;  and  it  is  governed  by  the 
follovcing  rules: 
^a)    The  agent  must  have  contracted  as  agent,  and  not  on  his  o^vn 
account. 

(b)  The  principal  must  have  been  in  contemplation,  or  at  least  ascer- 

tainable, at  the  time. 

(c)  It  follovrs  that  the  principal  must  have  been  in  existence  at  the 

time. 
<d)    The  contract  must  have  been  such  as  the  principal  had  the  legal 
capacity  to  make,  and  must  have  been  lavi^ful. 

(e)  A  contract  may  be  ratified  either  by  Xfrords  or  by  conduct,  but  to 

be  effectual  it  must  be  uT^ith  a  full  knov^ledge,  actual  or  con- 
structive, of  all  the  material  facts. 
EXCEPTIONS — A  contract  under  seal  cannot  be  ratified  except  under 
seal,  nor  can  a  contract  for  which  xirritten  authority  is  required 
by  statute  be  ratified  except  by  wrriting. 

(f)  A  contract  cannot  be  disaffirmed  in  part  only.     If  ratified  in  part, 

the  urhole  is  ratified. 

An  important  mode  of  creating  agency  is  by  ratification.  Where  a 
contract  is  made  by  one  person  on  behalf  of  another,  but  without  au- 
thority, the  latter,  on  learning  of  it,  may  confirm  or  adopt  the  con- 
tract, and  take  the  benefits  and  liabilities  of  it.  His  ratification  relates 
back,  and  is  equivalent  to  prior  authority.^®     That  "an  act  done  for 

IT  Pickering  v.  Bask,  15  East,  38;  Gibson  v.  Hardware  Co.,  94  Ala.  346, 
10  South.  304;  Paine  v.  Tillinghast,  52  Conn.  532;  Pursley  v.  Morrison,  7 
Ind.  356,  63  Am.  Dec.  424;  Emerson  v.  Miller,  27  Pa.  278;  .Jolmson  v.  Hmiey, 
115  Mo.  513,  22  S.  W.  492;  Pennsylvania  R.  Co.  v.  Atlia  (D.  C.)  22  Fed.  920; 
Crane  v.  Gruenewald,  120  N.  Y,  274,  24  N.  E.  456,  17  Am.  St.  Rep.  643;  Tier 
V.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634. 

18  Pickering  v.  Busk,  15  East,  38. 

i»  Nesbitt  V.  Helscr,  49  Mo.  383;    Goss  v.  Stevens,  32  Minn.  472,  21  N.  W. 


§  271)  CREATION   OF  THE   RELATION.  503 

another  by  a  person  not  assuming  to  act  for  himself,  but  for  such  other 
person,  though  without  any  precedent  authority  whatever,  becomes  the 
act  of  the  principal,  if  subsequently  ratified  by  him,  is  the  known  and 
well-established  rule  of  law.  In  that  case  the  principal  is  bound  by 
the  act,  whether  it  be  for  his  detriment  or  his  advantage."  *" 

The  rules  governing  ratification  are  that  the  agent  must  have  con- 
tracted, as  agent,  for  a  principal  who  was  in  contemplation,  and  in 
existence,  at  the  time,  either  actually  or  in  contemplation  of  law,  and 
for  such  things  as  the  principal  could  and  lawfully  might  do.^^ 

(i)  In  the  first  place,  the  agent  must  have  contracted  as  agent,  and 
not  on  his  own  account. ^^  A  person  cannot  contract  and  incur  a  lia- 
bility on  his  own  account,  and  then_assign  it  to_somc  one  else  under 
jcolor  of  ratification.  If  he  has  no  principal  at  the  time,  and  contracts 
in  his~owrrname,  he  can  only  divest  himself  of  his  rights  and  liabilities 
by  assignment  to  the  latter.  If  he  has  a  principal  at  the  time,  and  con- 
tracts in  his  own  name,  the  other  party,  as  we  shall  presently  see,  may 
either  hold  him  personally  liable,  or  may  hold  the  principal  Uable,  at 
his  option. 

(2)  The  agent  must  have  acted  for  a  principal  who  was  in  contem- 
plation. He  need  not  have  been  known,  but  he  must  at  least  have  been 
capable  of  being  ascertained.^^  He  must  not  have  made  a  contract,  as 
agent,  with  the  expectation  that  parties  of  whom  he  was  not  cognizant 
at  the  time  would  relieve  him  of  his  liabilities.     The  act  must  have 

549;  Sheldon  Hat-Blocking  Ck).  v.  Machine  Co.,  90  N.  Y.  610;  Clealand  v. 
Walker,  11  Ala.  1058,  46  Am.  Dec.  238;  Mason  v.  Caldwell,  5  Gilman  (111.) 
196,  48  Am.  Dec.  330;  Strasser  v.  Conklin,  54  Wis.  102,  11  N.  W.  254;  Starka 
V.  Sikes,  8  Gray  (Mass.)  609.  69  Am.  Dec.  270;  McCracken  v.  City  of  San 
Francisco,  16  Cal.  591;  Beidman  v.  Goodell,  56  Iowa,  592,  9  N.  W.  900; 
Despatch  Line  of  Packets  v.  Manufacturing  Co.,  12  N.  H.  205,  37  Am.  Dec. 
203;  Kinsley  v.  Norris,  60  N.  H.  131;  First  Nat.  Bank  v.  Gay.  63  Mo.  33,  21 
Am.  Rep.  430 ;  Wallace  v.  Lawyer,  90  Ind.  499 ;  Persons  v.  McKibben,  5  Ind. 
261,  61  Am.  Dec.  85.  To  this  statement  there  is  this  qualification:  "The 
ratification  operates  upon  the  act  ratified  precisely  as  though  authority  to  do 
the  act  had  been  previously  given,  except  where  the  rights  of  third  parties 
have  intervened  between  the  act  and  the  ratification.  The  retroactive  eflicacy 
of  the  ratification  is  subject  to  this  qualification.  The  intervening  rights  of 
third  persons  cannot  be  defeated  by  the  ratification;  in  other  words,  it  is 
essential  that  the  party  ratifying  should  be  able  not  merely  to  do  the  act 
ratified  at  the  time  the  act  was  done,  but  also  at  the  time  the  ratification  was 
made."  Cook  v.  Tullis,  18  Wail.  332,  21  L.  Ed.  933;  Wood  v.  McCain,  7  Ala. 
800,  42  Am.  Dec.  012. 

20  Wilson  V.  Tumman,  6  Man.  &  G.  236;    Forbes  v.  Hagman,  75  Va.  178. 

21  Anson,  Cont.  (4th  Ed.)  335. 

22  Hamlin  v.  Sears.  82  N.  Y.  327;  Workman  v.  Wright,  33  Ohio  St.  405. 
31  Am.  Rep.  546;  Allred  v.  Bray,  41  Mo.  484,  97  Am.  Dec.  283;  Beveridge  v. 
Rawson,  51  111.  504;    Roby  v.  Cossitt,  78  111.  638. 

23  Foster  v.  Bates,  12  Mees.  &  W.  226;    Roby  v.  Cossitt,  78  111.  638. 


504  AGENCY.  (Ch.  12 

been  "done  for  another  by  a  person  not  assuming  to  act  for  himself, 
but  for  sucli  otiier  person."  ^* 

(3)  The  third  rule  necessarily  follows,  namely,  that  the  principal 
must  have  been  in  existence,  either  actually  or  in  contemplation  of  law, 
at  the  time  the  contract  was  made.  "Ratification  can  only  be  by  a  per- 
son ascertained  at  the  time  of  the  act  done, — by  a  person  in  existence 
either  actually,  or  in  contemplation  of  law,  as  in  the  case  of  the  as- 
signees of  bankrupts,  and  administrators,  whose  title,  for  the  protec- 
tion of  the  estate,  vests  by  relation."  ^^  This  rule  has  been  applied  to 
contracts  made  by  promoters  of  corporations  on  behalf  of  the  corpora- 
tion before  its  formation.  It  has  been  very  generally  held  that  the 
corporation  could  not  become  liable  by  rnere  ratification.^®  The  prin- 
cipal need  not  have  been  in  actual  existence,  but  may  have  existed  in 
contemplation  of  law  only.  A  person,  for  instance,  may  contract  on 
behalf  of  the  estate  of  a  deceased  person  or  of  a  bankrupt,  and  the  ad- 
ministrators of  "trustees-- in  bankruptcy  may  ratify  and  adopt  the  con- 
tract, though  they  were  not  appointed,  or  even  ascertained,  at  the  time 
it  was  made.^'^ 

(4)  The  fourth  rule  is  that  the  agent  must  have  contracted  for  such 
things  as  the  principal  had  the  legal  capacity  to  do,^^  and  might  law- 
fully do.^*     There  can  be  no  ratification  of  a  void  act.     And  so,  if  an 

24  Wilson  V.  Timiman,  6  Man.  &  G.  236. 

2  5  Kelner  v.  Baxter,  L.  R.  2  C.  P.  175. 

2  6  Kelner  v.  Baxter,  L.  R.  2  G.  P.  175;  Abbott  v.  Hapgood,  150  Mass.  248,  22 
N.  E.  907,  5  L.  R.  A.  586,  15  Am.  St.  Rep.  193;  In  re  Empress  Engineering 
Co.,  16  Cb.  Div.  125.  But  see  Bell's  Gap  R.  Co.  v.  Cbristy,  79  Pa.  54,  21  Am. 
Rep.  39;  Bommer  v.  Manufacturing  Co.,  81  N.  Y.  468.  Wbere  the  corporation 
has  been  formed  when  its  agents  enter  into  a  contract,  the  fact  that  it  has 
not  filed  its  articles  of  incoiTxiration,  as  required  by  statute  to  entitle  it  to 
do  business,  does  not  prevent  it  from  ratifying  the  contract  after  filing  its 
articles.  Whitney  v.  Wyman,  101  U.  S.  392,  25  L.  Ed.  1050.  And  where  the 
corporation,  after  it  is  formed,  receives  and  enjoys  the  consideration,  it  may 
Decome  liable  as  on  an  implied  contract.  Bommer  v.  Manufacturing  Co.,  81 
N.  Y.  468;  Wood  v.  Whelen,  93  111.  153;  McArthiu-  v.  Printing  Co.,  48  Minn. 
319,  51  N.  W.  216,  31  Am.  St.  Rep.  653;   Reichwald  v.  Hotel  Co.,  106  111.  439. 

2  7  Kelner  v.  Baxter,  L.  R.  2  C.  P.  175;   Foster  v.  Bates,  12  Mees.  &  W.  226. 

28  Armitage  v.  Widoe,  30  Mich.  124;  Calhoun  v.  Millard,  121  N.  Y.  69,  24 
N.  E.  27;  O'Conner  v.  Arnold,  53  Ind.  203;  Davis  v.  Lane,  10  N.  H.  156; 
Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435. 

2  8  McCracken  v.  City  of  San  Francisco,  16  Cal.  591;  State  v.  Matthis,  1 
Hill  (S.  C.)  37;  Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435;  Turner  v. 
Insm-ance  Co.,  55  Mich.  237,  21  N.  W.  326.  "On  this  last  ground  it  has  been 
said  that  a  forged  signature  cannot  be  ratified;  but  it  would  seem  that 
ratification  is  not  here  in  question,  for  one  who  forges  the  signature  of  an- 
other does  not  possess  tlie  authority  of  an  agent,  actually  or  in  contempla- 
tion. The  forger  does  not  act  for  another;  he  personates  the  man  whose 
signature  he  forges."  Anson,  Cont.  337,  To  the  effect  that  a  forged  signature 
can  be  ratified,  see  President,  etc.,  of  Greenfield  Bank  v.  Crafts,  4  Allen 
(Mass.)  447;    Forsyth  v.  Day,  46  Me.  176;    Hefner  v.  Vandolah,  62  III.  483, 


§  271)  CREATION    OF   THE    RELATION.  505 

agent  enters  into  a  contract  on  behalf  of  a  principal  who  is  incapable 
of  making  it,  or  if  he  enters  into  an  illegal  contract,  no  ratification  is 
possible.  The  transaction  is  void, — in  the  one  case  because  of  the  prin- 
cipal's incapacity,  and  in  the  other  because  of  the  illegality  of  the  act. 
An  infant,  for  instance,  cannot,  as  a  rule,  empower  an  agent  or  attor- 
ney to  act  for  him,  and  therefore  he  cannot  ratify  what  another  has  as- 
sumed to  do  in  his  name  as  an  agent  or  attorney.  He  cannot  affirm 
what  he  could  not  authorize.^*' 

(5)  A  person  in  ratifying  a  contract  thus  made  by  another  on  his 
behalf,  but  without  authority,  may,  as  in  the  acceptance  of  any  other 
simple  contract,  signify  his  assent  by  words  or  by  conduct.  He  may 
expressly  declare  his  responsibility  for  the  act  of  his  agent,'^  or  he 
may  accept  the  benefit  of  it,  and  thereby  impliedly  assent,^^  or  may 
otherwise  impliedly  assent  by  acquiescence  in  what  has  been  done.^' 
A  ratification,  to  be  effectual,  must  be  with  a  full  knowledge  of  all  the 
material  facts.**     Where  conduct  is  relied  upon  as  constituting  ratifi- 

14  Am.  Rep.  106.  For  a  collection  of  the  cases  pro  and  con,  see  Henry  v. 
Heeb,  114  Ind.  275,  16  N.  E.  GOG,  5  Am.  St.  Rep.  G13. 

30  Armitage  v.  Widoe,  36  Mich.  124;  TRUEBLOOD  v.  TRUEBLOOD,  8 
Ind.  195,  65  Am.  Dec.  756;  Fonda  v.  Van  Home,  15  Wend.  (N.  Y.)  631,  30  Am. 
Dec.  77. 

81  Bigelow  V.  Denison,  23  Vt.  564. 

3  2  Coykendall  v.  Constable,  99  N.  Y.  309,  1  N.  E.  309;  Hyatt  v.  Clark, 
118  N.  Y.  5G3,  23  N.  E.  891;  Couaut  v.  Canal  Co.,  29  Vt.  263;  Miles  v.  Ogden, 
54  Wis.  573,  12  N.  W.  81;  Hall  v.  White,  123  Pa.  95,  16  Atl.  521;  Eikenberry 
V.  Edwards,  67  Iowa,  14,  24  N.  W.  570,  56  Am.  Rep.  360 ;  Shoninger  v.  Peahody, 
57  Conn.  42,  17  Atl.  278,  14  Am.  St.  Rep.  88;  Logan  Co.  Nat.  Bank  v.  Towuseud 
(Ky.)  3  S.  W.  122;  Murray  v.  Mayo,  157  Mass.  248,  31  N.  E.  1063;  United 
States  Mortgage  Co.  v.  Henderson,  111  Ind.  24,  12  N.  E.  88;  Taylor  v.  Conner, 
41  Miss.  722,  97  Am.  Dec.  419;  Ehrmanntraut  v.  Robinson,  52  Minn.  333. 
54  N.  W.  188;    Gulick  v.  Grover.  33  N.  J.  Law,  463,  97  Am.  Dec.  728. 

8  8  Alexander  v.  Jones,  64  Iowa,  207,  19  N.  W.  913;  Terre  Haute  &  I.  R. 
Co.  V.  Stockwell,  118  Ind.  98,  20  N.  E.  650;  Sheldon  Hat  Blocking  Co.  v. 
Machine  Co.,  90  N.  Y.  610;  Cairnes  v.  Bleecker,  12  Johns.  (N.  Y.)  300;  Pope  v. 
Henry,  24  Vt.  560;  Hawkins  v.  Lange,  22  Minn.  557;  Lathrop  v.  Bank.  8 
Dana  (Kj".)  114,  33  Am.  Dec.  481;  Cooper  v.  Schwartz.  40  Wis.  54;  Merrill 
V.  Wilson,  66  Mich.  232,  33  N.  W.  716;  Burke  v.  Railway  Co.,  83  Wis.  410. 
53  N.  W.  692. 

s*  Combs  V.  Scott,  12  Allen  (Mass.)  493 ;  Saville,  Somes  &  Co.  v.  Welch,  58 
Vt.  683,  5  Atl.  491;  Wheeler  v.  Sleigh  Co.  (C.  C.)  39  Fed.  347;  Roliorts  v. 
Rumley,  5S  Iowa,  301,  12  N.  W.  323;  King  v.  Mackellar,  109  N.  Y.  215, 
16  N.  E.  201;  Smith  v.  Kidd,  68  N.  Y.  130,  23  Am.  Rep.  157;  Billings  v.  Mor- 
row, 7  Cal.  171,  68  Am.  Dec.  235;  Jackson  v.  Badger,  35  Minn.  52.  26  N.  W. 
908;  Taliaferro  v.  Bank,  71  Md.  200,  17  Atl.  1036;  Condit  v.  Baldwin.  21  N.  Y. 
219,  78  Am.  Dec.  137;  Stout  v.  McDachlin,  38  Kan.  120,  15  Pac.  902;  Kelley 
V.  Railroad  Co.,  141  Mass.  496,  6  N.  E.  745;  Hovey  v.  Brown,  59  N.  H.  114; 
Herring  v.  Skaggs,  73  Ala.  446;  Men-ick  Thread  Co.  v.  Manufacturing  Co., 
115  Pa.  314,  8  Atl.  794;  Dadd  v.  Hildebrant,  27  Wis.  135,  9  Am.  Rep.  445; 
Woodruff  V.  Railroad  Co.,  108  N.  Y.  39,  14  N.  E.  832;  Manning  v.  Gasbarie.  27 
Ind.  399;    Gulick  v.  Grover,  33  N.  J.  Law,  463,  97  Am.  Dec.  728;    Eggleston 


506  AGENCY.  (Ch.  12 

cation,  the  relations  of  the  parties  and  their  ordinary  course  of  deaUng 
may  be  of  weight. 

As  we  have  seen,  a  contract  under  seal  cannot  be  entered  into  by 
an  agent  unless  his  authority  is  under  seal ;  and  so,  where  a  person  has 
assumed  to  enter  into  a  contract  under  seal  for  another  without  au- 
thority, the  latter  cannot  ratify  it  by  parol.  He  may  probably,  by 
recognizing  and  carrying  it  into  effect,  make  it  binding  upon  him  as  a 
parol  contract,  but  he  cannot,  by  parol  ratification,  make  it  his  deed.^' 
Where  appointment  of  an  agent  to  make  a  particular  contract  is  re- 
quired by  statute  to  be  in  writing,  such  a  contract  entered  into  without 
authority  cannot  be  ratified  without  writing.^^  "If  sealed  authority 
was  indispensable,  sealed  ratification  must  be  shown;  and,  if  written 
authority  was  required,  written  ratification  must  appear."  ^^  If  parol 
authority  is  sufficient,  ratification  may  be  by  parol. ^^ 

(6)  If  the  principal  elects  to  ratify  the  unauthorized  contract  of  his 
agent,  he  must  ratify  it  as  the  agent  made  it.     No  rule  is  better  settled 

V.  Mason,  84  Iowa.  630,  51  N.  W.  1;  Slioninger  v.  Peabody,  59  Conn.  588, 
22  Atl.  437.  "Ratification  of  a  past  and  completed  transaction,  into  wliich  an 
agent  lias  entered  without  authority,  is  a  pui-ely  voluntary  act  on  the  part 
of  a  principal.  No  legal  obligation  rests  upon  him  to  sanction  or  adopt  it. 
No  duty  requires  him  to  make  inquires  concerning  it.  Where  there  is  no 
legal  obligation  or  duty  to  do  an  act,  there  can  be  no  negligence  in  an  omis- 
sion to  perform  it.  *  *  *  We  do  not  mean  to  say  that  a  person  can  be 
willfully  ignorant,  or  purposely  shut  his  eyes  to  means  of  information 
within  his  own  possession  and  control,  and  thereby  escape  the  consequences 
of  a  ratification  of  unauthorized  acts  into  which  he  has  deliberately  entered; 
but  our  opinion  is  that  ratification  of  an  antecedent  act  of  an  agent  which 
was  xmauthorized  cannot  be  held  valid  and  binding  where  the  person  sought 
to  be  charged  has  misapprehended  or  mistaken  material  facts,  although  he 
may  have  wholly  omitted  to  make  inquiries  of  other  persons  concerning 
them,  and  his  ignorance  and  misapprehension  might  have  been  enlightened 
and  corrected  by  the  use  of  diligence  on  his  part  to  ascertain  them."  Combs 
V.  Scott,  supra.  Mistake  of  law— as  to  the  legal  effect  of  the  contract,  for 
instance— does  not  render  a  ratification  ineffectual.  Hyatt  v.  Clark,  118 
N.  Y.  503,  23  N.  E.  891;  Kelley  v.  Railroad  Co.,  141  Mass.  496,  6  N.  E.'  745; 
Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150. 

35Hanford  v.  McNair,  9  Wend.  (N.  Y.)  54;  Heath  v.  Nutter,  50  Me.  378; 
Blood  V.  Goodrich,  12  Wend.  (N.  Y.)  525.  27  Am.  Dec.  152;  Hunter  v.  Parker,  7 
Mees.  &  W.  343;  Boyd  v.  Dobson,  5  Humph.  (Tenn.)  37;  Pollard  v.  Gibbs,  55 
Ga.  45;  MeCalla  v.  Mortgage  Co.,  90  Ga.  113,  15  S.  E.  087;  Stetson  v.  Patten, 
2  Greenl.  (Me.)  358,  11  Am.  Dec.  Ill;  Spofford  v.  Hobbs,  29  Me.  148,  48  Am. 
Dec.  521;  Reese  v.  Medlock,  27  Tex.  120,  84  Am.  Dec.  611.  Contra  (parol  rati- 
fication sufficient),  Mclutyre  v.  Park,  11  Gray  (Mass.)  102,  71  Am.  Dec.  690. 
That  parol  ratification  by  a  partner  is  good,  see  Drumright  v.  Philpot,  16  Ga. 
424,  60  Am.  Dec,  738. 

3  0  Hawkins  v.  McGroarty,  110  Mo.  546,  19  S.  W.  830;  Palmer  v.  Williams, 
24  Mich.  328;    Ragan  v.  Chenault,  78  Ky.  546. 

8T  Mechem,  Ag.  §  136. 

88  Goss  V.  Stevens,  32  Minn.  472,  21  N.  W.  549;  Newton  v.  Bronson,  13 
N.  Y.  587,  67  Am.  Dec.  89. 


§§  272-273)  EFFECT   OF   THE    RELATION.  507 

than  the  rule  that  he  cannot  ratify  a  part  of  the  contract  and  repudiate 
the  rest.     If  he  ratifies  a  part,  he  ratifies  the  whole.^*  ,»^ 

Y^  EFFECT  OF  THE  RELATION. 

Having  considered  the  various  modes  in  which  the  relation  of  prin- 
cipal and  agent  may  be  created,  we  must  now  deal  shortly  with  the 
efifects  of  that  relation.  In  doing  so  we  will  consider  (i)  the  rights 
and  liabilities  of  the  principal  and  agent  inter  se;  (2)  the  rights  and 
liabilities  of  the  parties  where  an  agent  contracts  as  agent  for  a  named 
principal ;  and  (3)  the  rights  and  liabilities  of  the  parties  where  an 
agent  contracts  for  a  principal  whose  name  or  whose  existence  he 
does  not  disclose. 


SAME— BIGHTS  AND  LIABILITIES  OF  PBINCIFAL  AND  AGENT 

INTEB  SE. 

272.  The  duties  of  the  principal  are: 

(a)  To  pay  the  agent  the  commission  or  rew^ard  agreed  npon. 

(b)  To  indemnify  the  agent  for  acts  laT^fully  done  in  the  execution 

of  his  authority. 

273.  The  duties  of  the  agent  are: 

(a)  To  account  to  the  principal  for  the  property  of  the  latter  which 

comes  into  his  hands  in  the  course  of  the  employment. 

(b)  To  obey  instructions,  to  use  ordinary  diligence  in  the  discharge  of 

his  duties,  to  employ  any  special  skill  or  capacity  which  he  may 
profess  for  the  Tvork  in  hand,  and  to  notify  his  employer  o£ 
circumstances  \phich  he  ought  to  kno^ir. 

(c)  To  make  no  profit  other  than  the  commission  or  revrard  promised, 

either — 

(1)  By  taking  rew^ard  from  others,  or 

(2)  By  becoming  principal  as  against  his  employer. 

(d)  As  a  rule,  an  agent  cannot  delegate  his  poivers. 

The  relations  of  principal  and  agent  inter  se  are  made  up  of  the 
ordinary  relations  of  employer  and  employed,  and  of  those  which  spring 
from  the  special  business  of  an  agent  to  bring  two  parties  together  for 
the  purpose  of  making  a  contract, — to  establish  privity  of  contract  be- 
tween his  employer  and  third  parties. 

89  Eberts  v.  Selover,  44  Mich.  519,  7  N.  W.  225,  38  Am.  Rep.  278;  McClure 
V.  Briggs,  58  Vt.  82,  2  Atl.  583,  56  Am.  Rep.  557;  Brigham  v.  Palmer,  3  Allen 
(Mass.)  450;  Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  398,  22  Atl.  667, 
27  Am.  St.  Rep.  638;  Taylor  v.  Conner,  41  Miss.  722,  97  Am.  Dec.  419;  Shonin- 
ger  V.  Pea  body,  57  Conn.  42,  17  Atl.  278,  14  Am.  St.  Rep.  88;  Bsterly  Harvest- 
ing Mach.  Co.  V.  Frolkey,  34  Neb.  110.  51  N.  W.  594;  Walker  v.  Haggerty,  30 
Neb.  120,  46  N.  W.  221;  Daniels  v.  Brodie,  54  Ark.  216,  15  S.  W.  467,  11  L. 
R.  A.  81;    Rudasill  v.  Falls,  92  N.  C.  222. 


508  AGENCY.  (Cb   12 

Duties  of  Principal. 

The  duties  of  the  principal  are  plain.  In  the  first  place,  he  is  bound 
to  pay  the  agent  such  commission  or  reward  for  the  empolyment  as  may 
have  been  agreed  upon  between  them,  provided  the  agent  has  not,  by 
his  conduct,  forfeited  the  right  to  compensation.  If  the  agent  is  guilty 
of  fraud  or  breach  of  his  duty,  he  may  forfeit  his  right  in  this  respect; 
just  as  the  breach  of  any  other  contract  by  one  of  the  parties  may  dis- 
charge the  other.*° 

The  principal  is  further  bound  to  indemnify  the  agent  for  acts  law- 
fully done  in  the  execution  of  his  authority.*^  The  acts,  however, 
must  be  lawfully  done,  at  least  in  so  far  as  the  agent  is  concerned ;  for, 
as  we  have  already  seen,  a  promise  of  indemnity  for  unlawful  acts  is 
illegal,  and  will  not  support  an  assumpsit.*^ 

DiLties  of  the  Agent. 

The  agent  is  bound,  like  every  person  who  enters  into  a  contract  of 
employment,  to  account  for  the  property  of  his  employer  which  comes 
into  his  hands  in  the  course  of  the  employment.  The  law  implies  a 
promise  to  account  within  a  reasonable  time  and  without  demand,  and 
for  a  breach  thereof  an  action  of  assumpsit  will  lie.*^  This  does  not 
apply,  so  as  to  dispense  with  the  necessity  for  demand,  where  the 
agent  has  faithfully  performed  his  duty  by  giving  his  principal  timely 
notice  that  he  has  received  money  or  other  property  on  his  account.** 

It  is  also  the  duty  of  the  agent  to  obey  instructions,  to  use  ordinary 
diligence  in  the  discharge  of  his  duties,  to  display  any  special  skill  or 
capacity  which  he  may  have  professed  for  the  work  in  hand,  and  to 

40  Vennnm  v.  Gregory,  21  Iowa,  326;  Shaeffer  v.  Blair,  149  U.  S.  248.  13 
Sup.  Ct  856,  37  L.  Ed.  721 ;  Sea  v.  Carpenter,  16  Ohio,  412 ;  Jansen  v.  Wil- 
liams, 36  Neb.  869,  55  N.  W.  279,  20  L.  R.  A.  207.  As  to  lien  of  agent  for 
compensation,  see  Muller  v.  Pondir,  55  N.  Y.  325.  14  Am.  Rep.  2.59;  McKenzie 
V.  Nevins,  22  Me.  138,  38  Am.  Dec.  291;  Farrington  v.  Meek,  30  Mo.  578,  77 
Am.  Dec.  627;   Vinton  v.  Baldwin,  95  Ind.  433. 

4iD'Arcy  v.  Lyle,  5  Bin.  (Pa.)  441;  Howe  v.  Railroad  Co.,  87  N.  T.  297; 
Cliamberlain  v.  Beller,  18  N.  Y.  115;  Bibb  v.  Allen.  149  U.  S.  481.  13  Sup.  Ct. 
950,  37  L.  Ed.  819;  Ruffner  v.  Hewitt,  7  W.  Va.  .585;  Grace  v.  Mitchell,  31 
Wis.  533,  11  Am.  Rep.  613;   Maitland  v.  Martin,  86  Pa.  120. 

42  Coventry  v.  Barton,  17  Johns.  (N.  Y.)  142,  8  Am.  Dec.  376.  If  one  request 
or  direct  another  to  do  an  act  which  the  latter  knows  at  the  time  will  be  a 
ti'espass,  and  promise  to  indemnify  him,  the  promise  is  void;  but  if  the  party 
who  does  the  act  at  the  instance  or  by  the  command  of  another  does  not  know 
at  the  time  that  he  is  committing  a  trespass,  and  is  not  charged  by  law  with 
knowledge,  the  promise  to  indemnify  is  valid.  Coventi-y  v.  Barton,  supra; 
Moore  v.  Appleton,  26  Ala.  633;  Drummond  v.  Hiunphreys,  39  Me.  347;  Gower 
V.  Emery,  18  :Me.  79. 

43  Clark  V.  Moody,  17  Mass.  145;  Lillie  v.  Hoyt,  5  Hill  (N.  Y.)  395,  40  Am. 
Dec.  360;  Wiley  v.  Logan,  96  N.  C.  510,  2  S.  E.  598;  Collins  v.  Tillou's  Adm'r, 
26  Conn.  368,  68  Am.  Dec.  398;   Placer  Co.  v.  Astin,  8  Cal.  303. 

44  Jett  V.  Hempstead,  25  Ark.  462. 


§§  272-273)  EFFECT   OF   THE    RELATION.  509 

give  his  principal  timely  notice  of  every  fact  or  circumstance  which 
may  make  it  necessary  for  him  to  take  measures  for  his  security.  A 
breach  of  this  duty  is  a  breach  of  contract,  for  which  the  agent  is  liable 
to  the  principal  in  damages.*'^ 

An  agent  is  bound  not  to  make  any  profit  out  of  transactions  into 
which  he  may  enter  on  behalf  of  his  principal  in  the  course  of  the  em- 
ployment, other  than  the  reward  or  commission  agrc«"d  upon  between 
them.  A  breach  of  this  duty  may  take  place  (i)  by  his  accepting  a 
reward  from  the  other  party  to  the  transaction  into  which  he  enters ; 
or  (2)  by  departing  from  his  character  as  agent,  and  assuming  that  of 
principal, — becoming,  for  instance,  the  buyer  of  that  which  he  is  em- 
ployed to  sell,  or  the  seller  of  that  which  he  is  employed  to  buy.  The 
first  transaction  is  obviously  fraudulent,  for  the  agent  is  virtually 
bribed  to  make  a  bad  bargain  for  his  principal ;  but  the  other  is  not 
necessarily  so.  In  both,  however,  the  agent  acquires  an  interest  ad- 
verse to  that  of  his  employer,  and  this  will  never  be  permitted,  for  it 
tends  to  fraud  and  breach  of  trust.** 

Where  an  agent,  therefore,  is  promised  a  reward  by  the  other  party 
to  the  transaction  in  which  he  is  engaged  for  his  principal,  or  other- 
wise makes  a  bargain  which  might  induce  him  to  act  disloyally  to  his 
principal,  he  cannot  recover  the  money  promised  him.*''  The  promise 
is  illegal  and  void.  It  is  immaterial  in  such  a  case  that  the  principal 
was  not  actually  injured,  for  the  tendency  of  the  contract  renders  it 
corrupt  and  unenforceable.  Further  than  this,  the  agent,  if  he  is  paid 
the  money  thus  promised  him,  or  otherwise  obtains  a  profit  by  a  trans- 
action of  this  nature,  is  bound  to  account  for  it  tO'  his  employer ;  or,  if 
there  is  no  account  remaining  to  be  taken  and  adjusted  between  him 
and  his  employer,  he  is  bound  to  pay  over  the  amount  as  money  abso- 
lutely belonging  to  his  employer.*** 

The  courts  are  strict  in  holding  that  an  agent  cannot  depart  from 
his  character  as  agent,  and  become  principal  party  to  the  transaction, 
even  though  his  change  of  attitude  does  not  result  in  injury  to  his 

45  Bell  V.  Cunningham,  3  Pet.  69,  7  L.  Ed.  606;  Whitney  v.  Express  Co., 
104  Mass.  152,  6  Am.  Rep.  207;  Scott  v.  Rogers.  31  N.  Y.  676;  Page  v.  Wells, 
37  Mich.  415;  Passano  v.  Acosta,  4  La.  26.  23  Am.  Dec.  470;  Sawyer  v. 
Mayhew,  51  Me.  398;  Laverty  v.  Snethen,  66  N.  Y.  522,  23  Am.  Rep.  184; 
Devall  V.  Burbridge,  4  Watts  &  S.  (Pa.)  305;  Babcock  v.  Orbison,  25  Ind. 
75;  Hall  v.  Raih-oad  Co.,  15  Ind.  362;  Morrison  v.  Orr,  3  Stew.  &  P.  (Ala.)  49, 
23  Am.  Dec.  319;  Geisse  v.  Franklin,  56  Conn.  83,  13  All.  148;  Redfield  v. 
Davis,  6  Conn.  439;  Bowerman  v.  Rogers,  125  U.  S.  585,  8  Sup.  Ct  986,  31 
L.  Ed.  815;   Clark  v.  Bank,  17  Pa.  322. 

46  Ante.  p.  301. 

4T  Harrington  v.  Dock  Co..  3  Q.  B.  Div.  548;  Rice  v.  Wood,  113  Mass.  133, 
18  Am.  Rep.  459;   Atlee  v.  Fink,  75  Mo.  100,  43  Am.  Rep.  385. 

48  :Morison  v.  Thompson,  L.  R.  9  Q.  B.  4S0;  Rice  v.  Wood,  113  Mass.  133, 
18  Am.  Rep.  459;    Smitz  v.  Leopold,  51  Minn.  455,  53  N.  W.  719. 


510  AGENCY.  (Ch.  12 

principal.'**  If,  for  instance,  a  person  is  employed  to  buy  or  sell,  he 
cannot  buy  from,  or  sell  to,  himself.^"  Nor,  if  he  is  employed  to  bring 
his  principal  into  contractual  relations  with  others  in  any  way,  can  he 
assume  the  position  of  the  other  contracting  party."^  This  rule  arises 
from  the  fiduciary  relation  of  principal  and  agent.  The  agent  is  bound 
to  do  the  best  he  can  for  his  principal,  and,  if  he  thus  assumes  a  posi- 
tion in  direct  antagonism  to  his  duty,  it  is  difficult  to  suppose  that  the 
special  knowledge  on  the  strength  of  which  he  was  employed  is  not 
exercised  to  the  disadvantage  of  his  principal.  Not  only,  therefore, 
can  he  not  assume  such  an  antagonistic  position  directly,  but  he  cannot 
do  so  indirectly.  If  an  agent  employed  to  effect  a  sale  of  property 
purchase  it  nominally  for  another,  but  really  for  himself,  the  purchase 
cannot  be  enforced. ^^  In  no  case  is  it  any  answer  to  say  that  every- 
thing was  fair,  and  that  the  principal  was  not  prejudiced.  It  is  enough 
that  the  agent's  interest  was  adverse  to  that  of  his  principal.  "The 
law  does  not  stop,"  it  has  been  said  in  reference  to  an  agent's  purchase 
for  himself,  "to  speculate  upon  the  probabilities  that  the  agent  has 
resisted  temptation ;  it  removes  the  temptation  by  proclaiming  in  ad- 
vance that  he  shall  not  acquire  the  property."  °^ 

As  a  rule,  an  agent  cannot  delegate  his  authority, — that  is,  he  cannot* 
depute  to  another  to  do  that  which  he  has  undertaken  to  do ;  "**  but  the 

48  People  V.  Board.  11  Mich.  222;  Davis  v.  Hamlin,  108  111.  39,  48  Am.  Rep. 
541.     And  see  the  eases  hereafter  cited. 

5  0  Bain  v.  Brown,  56  N.  Y.  285;  Taussig  v.  Hart,  58  N.  Y.  425;  Conkey  v. 
Bond,  36  N.  Y.  427;  Ellsworth  v.  Cordrey,  63  Iowa,  675,  16  N.  W.  211; 
D^vight  V.  Blackmar,  2  Mich.  330,  57  Am.  Dec.  130;  Gardner  v.  Ogden.  22  N. 
Y.  327,  78  Am.  Dec.  192;  Greenfield  Sav.  Bank  v.  Simons,  133  Mass.  415; 
Fountain  Coal  Co.  v.  Phelps,  95  Ind.  271;  Florance  v.  Adams,  2  Rob.  (La.) 
556,  38  Am.  Dec.  226;  Keighler  v.  Manufactm-ing  Co.,  12  Md.  383,  71  Am. 
Dec.  600;  Jansen  v.  Williams.  36  Neb.  869,  55  N.  W.  279,  20  L.  R.  A.  207; 
Peckham  Iron  Co.  v.  Harper,  41  Ohio  St.  100;  Tewksbury  v.  Spruance,  75 
111.  187;  Cottom  v.  Holliday,  59  111.  176;  Collins  v.  Rainey.  42  Ark.  531; 
Rochester  v.  Levering,  104  Ind.  562,  4  N.  E.  203;  Han-ison  v.  McHenry,  9  Ga. 
164,  52  Am.  Dec.  435;  Ames  v.  Booming  Co.,  11  Mich.  139,  83  Am.  Dec.  731; 
Woodman  v.  Davis,  32  Kan.  344,  4  Pac.  262;  Moseley's  Adm'rs  v.  Buck,  3 
Munf.  (Va.)  232,  5  Am.  Dec.  508;  Kerfoot  v.  Hyman,  52  111.  512. 

Bi  McPherson  v.  Watt,  3  App.  Cas.  254;  Moore  v.  Mandlebaum,  8  Mich.  433; 
Merryman  v.  David,  31  111.  404;  People  v.  Board,  11  Mich.  222;  Segar  v.  Ed- 
wards, 11  Leigh  (Va.)  213;  Stewart  v.  Mather,  32  Wis.  344;  Crumley  v.  Webb, 
44  Mo.  444,  100  Am.  Dec.  304;  Butcher  v.  Krauth,  14  Bush  (Ky.)  713;  Mc- 
Kinley  v.  Irvine,  13  Ala.  681. 

6  2  McPherson  v.  Watt,  3  App,  Cas.  254. 

53  Moore  v.  Moore,  5  N.  Y.  256;  People  v.  Board,  11  Mich.  222;  Rockford 
Watch  Co.  V.  Manifold,  36  Neb.  801.  55  N.  W.  236;  Colbert  v.  Shepherd,  89  Va. 
401,  16  S.  E.  246. 

54  "The  rule  of  law  is  well  settled  that  in  the  absence  of  any  authority, 
either  express  or  implied,  to  employ  a  subagent,  the  trust  committed  to  an 
agent  is  exclusively  personal,  and  cannot  be  delegated  by  him  to  another, 
so  as  to  affect  the  rights  of  the  principal.     In  such  case,  if  the  agent  employs 


§§  272-273)  EFFECT  OF  THE   RELATION.  511 

rule  is  subject  to  limitations.  "As  a  general  rule,  no  doubt,  the  maxim, 
'Delegatus  non  potest  delegare,'  applies  so  as  to  prevent  an  agent  from 
establishing  the  relationship  of  principal  and  agent  between  his  own 
principal  and  a  third  person ;  but  this  maxim,  when  analyzed,  merely 
imports  that  an  agent  cannot,  without  authority  from  his  principal, 
devolve  upon  another  obligations  to  the  principal  which  he  has  himself 
undertaken  personally  to  fulfill,  and  that,  inasmuch  as  confidence  in 
the  particular  person  employed  is  at  the  root  of  the  contract  of  agency, 
such  authority  cannot  be  implied  as  an  ordinary  incident  in  the  con- 
tract." °^  As  pointed  out,  however,  in  the  case  from  which  we  have 
quoted,  there  are  occasions  when  such  authority  must  needs  be  implied, 
— occasions  springing  from  the  conduct  of  the  parties,  the  usage  of  a 
trade,  the  nature  of  a  business,  or  an  unforeseen  emergency;  and 
"when  such  authority  exists,  and  is  duly  exercised,  privity  of  contract 
arises  between  the  principal  and  the  substitute,  and  the  latter  becomes 
as  responsible  to  the  former  for  the  due  discharge  of  the  duties  which 
his  employment  casts  upon  him,  as  if  he  had  been  appointed  agent  by 
the  principal  himself."  "®  But  where  there  is  no  such  implied  authori- 
ty, and  the  agent  employs  a  subagent  for  his  own  convenience,  no 
privity  of  contract  arises  between  the  principal  and  the  subagent.  In 
the  absence  of  special  circumstances  giving  rise  to  implied  authority, 
an  agent  can  never  delegate  any  portion  of  his  power  requiring  the 
exercise  of  discretion  or  judgment,  so  as  to  render  the  acts  of  his 
delegate  binding  on  the  principal ;  ^^  but  he  may  delegate  such  powers 
and  duties  as  are  merely  ministerial  or  mechanical  in  their  nature.^* 
If  an  agent,  for  instance,  is  empowered  to  bind  his  principal  by  an  ac- 

a  substitute,  he  does  it  at  his  own  risk  and  upon  his  own  responsibility. 
The  agent  only  is  liable  to  the  principal,  and  the  subagent  is  responsible 
solely  to  his  immediate  employer ;  nor  can  the  principal  be  liable  for  the  acts 
of  the  subagent.  There  is  no  privity  between  them  upon  which  any  mutual 
rights  and  remedies  can  be  based."  APPLETON  BANK  v.  McGILYRAY,  4 
Gray  (Mass.)  518,  64  Am.  Dec.  92. 
5  5  De  Bussche  v.  Alt,  8  Ch.  Div.  310. 

56  De  Bussche  v.  Alt,  8  Ch.  Div.  310;  APPLETON  BANK  v.  McGILVRAY, 
4  Gray  (Mass.)  518.  64  Am.  Dec.  92;  Darling  v.  Stanwood,  14  Allen  (Mass.) 
504:    Johnson  v.  Cunningham,  1  Ala.  249;   McCants  v.  Wells,  4  S.  C.  381. 

57  Warner  v.  Martin,  11  How.  223,  13  L.  Ed.  667;  Hunt  v.  Douglass,  22 
Vt  128;  Lyon  v.  Jerome.  26  Wend.  (N.  Y.)  485,  37  Am.  Dec.  271;  Birdsall  v. 
Clark,  73  N.  Y.  73,  29  Am.  Rep.  105;  Exchange  Nat.  Bank  v.  Bank,  112  U.  S. 
276,  5  Sup.  Ct.  141.  28  L.  Ed.  722;  Emerson  v.  Manufacturing  Co.,  12  Mass. 
237,  7  Am.  Dec.  66;  Cummins  v.  Heald,  24  Kan.  600,  36  Am.  Rep.  264; 
O'Conner  v.  Arnold.  53  Ind.  203;  Barnard  v.  Coffin,  141  Mass.  37,  6  N.  E. 
364,  55  Am.  Rep.  443;  Hoag  v.  Graves.  81  Mich.  628,  46  N.  W.  109;  Bocock 
V.  Pavey,  8  Ohio  St.  270;  Bennitt  v.  The  Guiding  Star  (D.  C.)  53  Fed.  936; 
Loeb  V.  Drakeford,  75  Ala.  464;  Sayre  v.  Nichols,  7  Cal.  535,  68  Am.  Dec. 
280;    Loomis  v.  Simpson,  13  Iowa,  532. 

58  Commercial  Bank  v.  Norton,  1  Hill  (N.  Y.)  501;  Bodine  v.  Insurance  Co., 
51  N.  Y.  123,  10  Am.  Rep.  566;  Grady  v.  Insurance  Co.,  60  Mo.  116;  Harralson 


512  AGENCY.  (Ch.  12 

commodation  acceptance,  he  cannot  delegate  to  another  the  power  to 
determine  the  propriety  of  the  acceptance,  but,  having  determined  this 
question  himself,  he  may  empower  another  to  write  the  acceptance,  and 
it  will  bind  the  principal,  though  naming  the  delegate,  and  not  the 
agent,  as  the  one  exercising  the  power. ^® 


SAME— RIGHTS  AND  lilABILITIES  AS  TO  THIRD  PERSONS— 

NAMED  PRINCIPAL. 

274.    Wliere  an  agent  contracts  as  agent  for  a  principal  xpIio  is  named, 

(a)  The  party  -nritli  Ttrliom  tlie  contract  is  made  is  liable  to  the  prin- 

cipal directly. 

(b)  The  principal  is  liable  directly  to  the  party  x^th  whom  the  con- 

tract is  made— 

(1)  If  the  agent  acted  xirithin  the  scope  of  his  actual  authority. 

(2)  If  the  agent  acted  Tvithin  an  apparent  authority  'with  -which 

he  -was  clothed  by  the  principal,  though  contrary  to  private 
instructions  and  limitations  not  know^n  to  the  other  party. 

(c)  The  agent  cannot  sue  in  his  ovim  name  on  the  contract  except— 

(1)  'Where  he  is  the  real  principal,  though  named  as  agent. 

(2)  Where  he  has  a  special  interest  in  the  subject-matter  of  the 

contract. 

(d)  The  agent  cannot  be  sued  on  the  contract  except — 

(1)  'Where  the  contract  is  under  seal,  and  he  has  made  himself 

a  party  to  it. 

(2)  In  some  jurisdictions,  Uirhere  he  contracted  for  a  foreign  prin- 

cipal. 

(3)  'Where  he  has  exceeded  his  authority,  or  has  contracted  v^ith- 

out  any  authority  at  all,  he  is  liable  in  tort.  In  some  juris- 
dictions he  is  liable  ex  contractu  on  an  implied  -warranty  of 
authority. 

(4)  Where   the   contract  xras  really  made  w^ith  him  personally, 

though  he  is  described  as  agent. 

Where  an  agent,  duly  authorized,  contracts  as  agent  for  a  named 
principal,  or,  in  other  words,  where  the  other  party  to  the  contract 
looks  through  the  agent  to  a  principal  who  is  disclosed,  the  agent 
drops  out  of  the  transaction,  if  he  keeps  within  his  authority,  as  soon 
as  the  contract  is  made.  The  principal,  and  he  alone,  becomes  directly 
liable  to  the  other  party,  and  the  latter  becomes  directly  liable  to  the 
principal,  and  to  him  alone.®"  Where  the  transaction  takes  this  form, 
only  two  matters  arise  for  discussion :     (i)  The  nature  and  extent  of 

V.  Stein,  50  Ala,  347;  Eldridge  v.  Hoi  way,  18  111.  445;  Williams  v.  Woods, 
16   Ua.   220. 

B9  Ck>mraercial  Bank  v.  Norton,  1  Hill  (N.  Y.)  501. 

CO  Hall  V.  Huntoon.  17  Vt,  244.  44  Am.  Dec.  332;  Rathbon  v.  Budlong,  15 
Johns.  (N.  Y.)  1 ;  Woodbridge  Tp.  v.  Hall,  47  N.  J.  Law,  388,  1  Atl.  492 ;  Ogden 
V.  Raymond,  22  Conn.  379,  58  Am.  Dec.  429;  Seery  v.  Socks,  29  111.  313; 
Michael  v.  Jones,  84  Mo.  578 ;   and  cases  hereafter  cited. 


§  274)  EFFECT  OF  THE  RELATION.  513 

the  agent's  authority ;  and  (2)  the  rights  of  the  parties  where  an  agent 
exceeds  his  authority. 

"Much  trouble  has  been  taken  to  distinguish  general  from  special 
agents,  as  having  two  sorts  of  authority,  different  in  kind  from  one 
another;  but  one  may  safely  say  that  such  a  difference  is  one  of  de- 
gree only."  ^^  Whether  the  authority  was  general  or  special  can  make 
no  difference  except  in  determining  whether  the  agent  exceeded  his  au- 
thority. If  the  contract  into  which  he  has  entered  was  within  or  with- 
out his  authority,  the  effect  is  the  same  in  either  case.®^  If  a  person 
employs  another  specially  to  buy  a  horse  for  him,  or  to  do  any  other 
single  piece  of  business,  the  latter  has  authority  to  do  whatever  is 
necessary  to  accomplish  that  object;  but  he  cannot  bind  his  principal 
by  a  contract  foreign  to  the  particular  object.®^  If  a  person  employs 
another  generally  to  manage  and  conduct  his  business,  the  latter  may 
bind  his  principal  by  any  contracts  necessary  or  proper  in  the  conduct 
of  that  business,  but  he  cannot  bind  him  by  contracts  foreign  to  the 
business.^*  These  cases  differ  in  nothing  but  the  extent  of  the  au- 
thority given.  The  extent  of  the  authority  is  determined  in  both  cases 
according  to  the  general  rule  that  the  scope  of  an  agent's  authority  is 
to  be  measured  by  the  nature  and  necessities  of  the  thing  to  be  ac- 
complished. There  is  no  difference  in  kind  between  the  cases.  In 
neither  of  them  does  the  agent  incur  any  personal  liability  to  any  one 
with  whom  he  contracts,  so  long  as  he  contracts  as  agent,  names  his 
principal,  and  keeps  within  the  limits  of  his  authority. 

The  acts  of  a  general  agent,  known  as  such,  govern  his  principal  in 

61  Anson.  Cont.  (4th  Ed.)  344. 

82  Butler  V.  Maples,  9  Wall.  766,  19  L.  Ed.  822 ;  Huntley  v.  Mathias,  90  N. 
C.  101,  47  Am.  Kop.  516;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec. 
384;  Hatch  v.  Taylor,  10  N.  H.  538;  Bryant  v.  Moore.  26  Me.  84,  45  Am. 
Dec.  96;  Wheeler  v.  McGuire,  86  AJa.  398,  5  South.  190.  2  L.  R.  A.  808; 
Loudon'  Sav.  Fund  Soc.  v.  Bank,  36  Pa.  498,  78  Am.  Dec.  390;  Piercy  v. 
Hedrick,  2  W.  Va.  45S,  98  Am.  Dec.  774. 

6  3  Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.)  494.  24  Am.  Dec.  62;  Daw  v. 
Stokes,  32  N.  J.  Law,  249,  90  Am.  Dec.  655;  INIoore  v.  Loekett,  2  Bibb.  (Ky.) 
67,  4  Am.  Dec.  683;  Loudon  Sav.  Fund  Soc.  v.  Bank,  36  Pa.  498.  78  Am.  Dec. 
390:  Huber  v.  Zimmerman,  21  Ala.  488.  56  Am.  Dec.  255;  Goodloe  v.  Godley, 
13  Smedes  &  M.  (Miss.)  233,  51  Am.  Dee.  150;  Reitz  v.  Martin,  12  Ind.  306, 
74  Am.  Dec.  215;  Thompson  v.  Stewart,  3  Conn.  171,  8  Am.  Dec.  168;  Towle 
V.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195;  Paige  v.  Stone,  10  Mete.  (Mass.) 
100,  43  Am.  Dec.  420;  Baring  v.  Peirce,  5  Watts  &  S.  (Pa.)  548,  40  Am.  Dec. 
534;  Brown  v.  Johnson,  12  Smedes  &  M.  (Miss.)  398,  51  Am.  Dec.  118; 
Wood  V.  Goodridge,  6  Gush.  (Mass.)  117.  52  Am.  Dec.  771;  Pursley  v.  Morrison, 
7  Ind.  356,  63  Am.  Dec.  424;  Trudo  v.  Anderson,  10  :\Iich.  357,  81  Am.  Dec. 
795. 

84  Notes  65,  67,  68,  Infra;    Wood  v.  McCain,  7  Ala.  800,  42  Am.  Dec.  612; 
Trout  V.  Emmons,  29  111.  433,  81  Am.  Dec.  326;    Cooley  v.  Willard.  34  III.  68, 
85  Am.  Dec.  296;    Brockway  v.  Mullin.  46  N.  J.  Law,  448,  50  Am.  Rep.  442; 
Despatch  Line  v.  Manufacturing  Co.,  12  N.  H.  205,  37  Am.  Dec.  203. 
Claek  Cont.  (2d  Ed.)— 33 


514  AGENCY.  (Cb.  12 

all  matters  coming-  within  the  proper  and  legitimate  scope  of  the  busi- 
ness to  be  transacted,  although  he  violates  by  these  acts  his  private  in- 
structions; Tor  his  authority  cannot  be  limited  by  any  private  instruc- 
tions, unless  known  to  the  person  dealing  with  him.'^^ 

If  the  agency  is  special,  and  is  known,  it  is  the  duty  of  the  person 
dealing  with  the  agent  to  inquire  into  the  nature  and  extent  of  the 
authority  conferred,  and  to  deal  with  the  agent  accordingly.^"  Where 
the  special  character  of  the  agency  is  not  known,  and  the  principal  has 
clothed  the  agent  with  apparent  powers,  strangers,  in  dealing  with  the 
agent,  may  assume  that  such  apparent  powers  are  possessed.  The 
principal  cannot,  by  private  communications  with  his  agent,  limit  the 
authority  which  he  allows  the  agent  to  assume.®''  "There  are  two 
cases  in  which  a  principal  becomes  liable  for  the  acts  of  his  agent, — 
one,  where  the  agent  acts  within  the  limits  of  his  authority ;  the  other, 
where  he  transgresses  the  actual  limits,  but  acts  within  the  apparent 
limits,  of  his  authority,  where  those  apparent  limits  have  been  sanc- 
tioned by  the  principal."  '* 

6B  Wheeler  v.  McGuire,  86  Ala.  398,  5  South.  190,  2  L.  R.  A.  808;  Whitehead 
V.  Tuckett,  15  East,  400;  Hatch  v.  Taylor,  10  N.  H.  538;  Hubbard  v.  Ten 
Brook,  124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823.  10  Am.  St,  Rep.  585;  Loudon 
Sav.  Fund  Soc.  v.  Bank,  36  Pa.  498,  78  Am.  Dec.  390;  Lightbody  v.  Insurance 
Co.,  23  Wend.  (N.  Y.)  18;  Munn  v.  Commission  Co.,  15  Johns.  (N.  Y.)  44,  8 
Am.  Dee.  219;  Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62; 
Lobdell  V.  Baker,  1  Mete.  (Mass.)  193,  35  Am.  Dec.  358;  Jeffrey  v.  Bigelow, 
13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476;  Walker  v.  Skip  with,  Meigs  (Teun.) 
502.  33  Am.  Dec.  161;  Williams  v.  Getty,  31  Pa.  461,  72  Am.  Dec.  757;  Lister 
V.  Allen,  31  Md.  543,  100  Am.  Dee.  78 ;  Sails  v.  Miller,  98  Mo.  478,  11  S.  W. 
970;  Topham  v.  Roche,  2  Hill  (S.  C.)  307,  27  Am.  Dec.  387;  Hubbard  v.  Ten 
Brook,  124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10  Am.  St.  Rep.  585;  Banks 
V.  Everest,  35  Kan.  687,  12  Pac.  141. 

86  Hatch  V.  Taylor,  10  N.  H.  538;  Snow  v.  Perry,  9  Pick.  (Mass.)  539;  Sand- 
ford  V.  Handy,  23  Wend.  (N.  Y.)  260;  Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.) 
494,  24  Am.  Dec.  62;  Towle  v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195;  Bryant 
V.  Moore,  26  Me.  84,  45  Am.  Dec.  96;  Ruppe  v.  Edwards,  52  Mich.  411,  IS 
N.  W.  193;  Dowden  v.  Cryder  (N.  J.  Err.  &  App.)  26  Atl.  941;  Bohart  v. 
Oberne,  36  Kan.  284,  13  Pac.  388;  Stovall  v.  Commonwealth,  84  Va.  246,  4  S. 
E.  379;    Yates  v.  Yates,  24  Fla.  64,  3  South.  821. 

67  Hamill  v.  Ashley,  11  Colo.  180,  17  Pac.  502;  Jackson  v.  Emmens,  119 
Pa.  356,  33  Atl.  210;  Shaw  v.  Williams,  100  N.  C.  272.  6  S.  E.  196;  Howell 
V.  Graff,  25  Neb.  130,  41  N.  W.  142;  Hayner  v.  Churchill,  29  Mo.  App.  676. 
And  see  cases  in  the  following  note,  and  in  notes  64,  65,  supra. 

68  Miuldick  V.  Marshall,  16  C.  B.  (N.  S.)  393;  Law  v.  Stokes,  32  N.  J.  Law, 
249;  Lister  v.  Allen,  31  Md.  543,  100  Am.  Dec.  78;  Bryant  v.  Moore.  26  Me. 
84,  45  Am.  Dec.  96;  Williams  v.  Mitchell,  17  Mass.  98;  Breckenridge  v.  Lewis, 
84  Me.  349,  24  Atl.  864,  30  Am.  St.  Rep.  353;  Talmage  v.  Bierhouse,  103  Ind. 
270,  2  N.  E.  716;  Hatch  v.  Taylor,  10  N.  H.  538;  Gallinger  v.  Traffic  Co., 
67  Wis.  529,  30  N.  W.  790;  Aldrich  v.  Wilmarth  (S.  D.)  54  N.  W.  811;  Palmer 
V.  Roath,  80  Mich.  602,  49  N.  W.  590;  Williams  v.  Getty,  31  Pa.  461,  72  Am. 
Dec.  757;  Wincholl  v.  Express  Co.,  64  Vt.  15,  23  Atl.  728;  Barnett  v.  Glutting, 
3  Ind.  App.  415,  29  N,  E.  927;    Allis  v.  Voigt,  90  Mich.  125,  51  N.  W.  190; 


§  274)  EFFECT   OF   THE    RELATION.  515 

In  like  manner,  as  we  have  seen,  an  implied  authority  may  be  de- 
duced from  the  nature  and  circumstances  of  the  particular  act  done  by 
the  principal.  If  a  principal  sends  his  commodity,  for  instance,  to  a 
place  where  it  is  the  ordinary  business  of  the  person  to  whom  it  is  con- 
fided to  sell,  it  will  be  presumed  that  the  article  is  sent  for  the  purpose 
of  sale ;  and  where  an  article  is  sent  in  such  a  way,  and  to  such  a  place, 
as  to  exhibit  an  apparent  purpose  of  sale,  the  principal  will  be  bound 
by  a  sale  by  his  agent,  though  the  latter,  unknown  to  the  purchaser, 
may  have  exceeded  his  actual  authority. "** 

It  may  be  well  for  us  to  note  shortly  the  amount  of  authority  with 
which  certain  kinds  of  agents  are  invested  in  the  ordinary  course  of 
their  employment. 

An  auctioneer  is  an  agent  to  sell  goods  at  a  public  auction.  He  is 
primarily  an  agent  for  the  seller,  but,  upon  the  goods  being  knocked 
down,  he  becomes  also  the  agent  of  the  buyer;  and  he  is  so,  as  we 
have  seen,  for  the  purpose  of  the  signatures  of  both  parties,  to  satisfy 
the  statute  of  frauds.  He  has  not  merely  an  authority  to  sell,  but 
actual  possession  of,  the  goods,  and  a  lien  upon  them  for  his  charges. 
He  may  sue  the  purchaser  in  his  own  name,''*'  and  even  where  he  con- 
tracts avowedly  as  agent,  and  for  a  known  principal,  he  may  introduce 
terms  into  the  contract  which  he  makes  with  the  buyer,  so  as  to  render 
himself  personally  liable.''^ 

A  factor,  by  the  rules  of  common  law  and  of  mercantile  usage,  is 
an  agent  to  whom  goods  are  consigned  for  the  purpose  of  sale,  and 
he  has  possession  of  the  goods,  authority  to  sell  them  in  his  own  name, 
and  a  general  discretion  as  to  their  sale.  He  may  sell  on  the  usual 
terms  of  credit,  may  receive  the  price,  and  give  a  good  discharge  to 
the  buyer.'' ^  He  further  has  a  lien  upon  the  goods  for  the  balance  of 
account  as  between  himself  and  his  principal,  provided  he  has  pos- 
session of  the  goods,  and  the  right  of  property  in  them  is  in  his  prin- 

Carmichael  v.  Buck.  10  Rich.  (S.  C.)  332,  70  Am.  Dec.  226;  Ayer  v.  Manufa(> 
turing  Co.,  147  Mass.  46,  16  N.  E.  754;  Mason  v.  Taylor,  38  Minn.  32,  35  N. 
W.  474. 

6  9  Ante,  p.  501  ;  Towle  v.  Leavitt.  23  N.  H.  373,  55  Am.  Dec.  195;  Piclvering 
V.  Busk,  15  East,  38;  Everett  v.  Saltus,  15  Wend.  (N.  Y.)  474;  Sandford  v. 
Handy,  23  Wend.  (N.  Y.)  260. 

TOHulse  V.  Young,  16  Johns.  (N.  Y.)  1;  Mintum  v.  Main,  7  N.  Y.  220; 
Beller  v.  Block,  19  Ark.  566;  Walker  v.  Hen-ing,  21  Grat.  (Va.)  678,  8  Am. 
Rep.  616;  McComb  v.  Wright,  4  Johns.  Ch.  (N.  Y.)  659;  Brent  v.  Green,  6 
Leigh   (Va.)   10. 

Ti  Wolfe  V.  Home,  2  Q.  B.  Div.  355. 

7  2  D^Yight  V.  Whitney,  15  Pick.  (Mass.)  179;  Slack  v.  Tucker,  23  Wall.  321, 
23  L.  Ed.  143;  Hutchinson  v.  Boners,  6  Cal.  383;  James  v.  McCredie,  1  Bay 
(S.  O.)  294;  Given  v.  Lemoine,  35  Mo.  110;  Van  Alen  v.  Vanderpool,  6  Johns. 
(N.  Y.)  69,  5  Am.  Dec.  192;  Pinkham  v.  Crocker,  77  Me.  503,  1  Atl.  827; 
Leverick  v.  Meigs,  1  Cow.  (N.  Y.)  645;  McConnico  v.  Curzen,  2  Call.  (Va.)  358, 
1  Am.  Dec.  540. 


51G  AGENCY.  (Ch.  12 

cipal.  If  he  voluntarily  relinquishes  possession,  he  loses  his  right  to 
a  lien.''^  He  also  has  an  insurable  interest  in  the  goods.  Such  is  the 
authority  of  a  factor  at  common  law, — an  authority  which  the  prin- 
cipal cannot  restrict,  as  against  third  parties,  by  instructions  privately 
given  to  his  agent.  This  authority  has  been  extended  by  statute  in 
some  jurisdictions. 

A  broker  is  an  agent  primarily  to  establish  privity  of  contract  be- 
tween two  parties.  Where  he  is  a  broker  for  sale,  he  has  not  posses- 
sion of  the  goods,  and  so  he  has  not  the  authority  thence  arising  which  a 
factor  enjoys.  Nor  has  he  authority  to  sue  in  his  own  name  on  con- 
tracts made  by  him. 

A  del  credere  agent  is  an  agent  for  the  purpose  of  sale,  but  in  addi- 
tion to  this  he  gives  an  undertaking  to  his  employer  that  the  parties 
with  whom  he  is  brought  into  contractual  relations  will  perform  the 
engagements  into  which  they  enter.  He  does  not  guaranty  the  solv- 
ency of  these  parties,  or  promise  to  answer  for  their  default,  but  he 
promises  to  indemnify  his  employer  against  his  own  inadvertence  or 
ill  fortune  in  making  contracts  for  him  with  persons  who  cannot  or 
will  not  perform  them.''* 

Rights  and  Liabilities  of  Agent. 

As  a  rule,  an  agent  cannot  sue  in  his  own  name  on  a  contract  into 
which  he  has  entered,  as  agent,  for  a  named  principal.''^  The  party 
with  whom  he  contracted  has  presumably  looked  to  the  named  prin- 
cipal, and  cannot,  unless  he  so  chooses,  be  made  liable  to  one  with 
whom  he  dealt  merely  as  a  means  of  communication.  To  this  rule 
there  are  exceptions:  (i)  Where  the  agent  is  the  real  principal;  and 
(2)  where  he  has  a  special  interest  in  the  subject-matter  of  the  con- 
tract. Where  the  agent  is  the  real  principal,  and  the  party  with  whom 
he  contracts  knows  of  this  fact,  and  deals  with  him  as  the  real  prin- 
cipal, he  may  sue  on  the  contract  in  his  own  name,  although  he  signed 

73  Winter  v.  Coit,  7  N.  Y.  2SS,  57  Am.  Dec.  522;  Elliot  v.  Bradley,  23  Vt. 
217;  Vail  v.  Diu-ant,  7  Allen  (Mass.)  408,  S3  Am.  Dec.  695;  Weed  v.  Adams, 
37  Conn.  378;  Gibson  v.  Stevens,  8  How.  384,  12  L.  Ed.  1123;  Gragg  v. 
Brown,  44  Me.  157;  Brown  v.  Combs,  G3  N.  Y.  598;  Scliiffer  v.  Feagin,  51 
Ala.  335;  Brown  v.  Wiggin,  16  N.  H.  312;  Winne  v.  Hammond,  37  HI.  99; 
Eaton  V.  Truesdail,  .52  111.  307. 

74  Dalton  V.  Goddard,  104  Mass.  497;  Bradley  v.  Richardson,  23  Vt.  720; 
Swan  V.  Nesmith,  7  Pick.  (]Mass.)  220,  19  Am.  Dec.  283;  Holbrook  v.  Wriglit, 
24  Wend.  (N.  Y.)  169;  Smock  v.  Brush,  02  Ind.  156;  Lewis  v.  Brehme,  33 
Md.  412,  3  Am.  Rep.  190 ;  Coulurier  v.  Hastie,  8  Exch.  40 ;  Grove  v.  Dubois,  1 
Term   R,   112. 

75Gunn  V.  Cantine,  10  Johna  (N.  Y.)  387;  Gilmore  v.  Pope,  5  Mass.  491; 
Jones  V.  Hart,  1  Hen.  &  M.  (Va.)  470;  Inhabitants  of  Garland  v.  Reynolds, 
20  Me.  45;  Kent  v.  Bernstein,  12  Allen  (Mass.)  342.  But  it  has  been  held 
otherwise  where  the  contract  was  payable  to  the  agent  by  name.  Sharp  v. 
Jones,  18  Ind.  314,  81  Am.  Dec.  350;    Doe  v.  Thompson,  22  N.  H.  217. 


§  274)  EFFECT  OF  THE   RELATION.  517 

the  contract  as  agent  of  a  named  principal.''^  It  has  also  been  held 
that  an  agent,  such  as  a  factor  or  auctioneer,  who  has  a  special  interest 
in  the  contract,  as  for  commissions,  may  sue  thereon  in  his  own  name.'^^ 

It  is  also  a  general  rule  that  an  agent  who  contracts,  as  agent,  for  a 
named  principal,  cannot  be  sued  on  the  contract ;  ''^  and  there  are 
very  few  exceptions  to  the  rule.  The  first  exception  is  in  case  of 
contracts  under  seal.  An  agent  who  makes  himself  a  party  to  a  con- 
tract under  seal  is  bound  thereby  at  common  law,  though  he  is  de- 
scribed as  agent.''® 

Another  exception  is  where  an  agent  contracts  for  a  foreign  prin- 
cipal. It  has  been  held  in  England,  and  in  some  of  our  states,  that 
an  agent  who  contracts  on  behalf  of  a  foreign  principal  is  held,  by  the 
usage  of  merchants,  to  have  no  authority  to  pledge  his  principal's 
credit,  and  becomes  personally  liable  on  the  contract.^"  In  New  York 
the  contrary  has  been  held.^^  Probably  in  no  state  would  a  sister  state 
be  regarded  as  a  foreign  country  within  the  rule.^^ 

When  a  person  without  authority  makes  a  contract  on  behalf  of 
another,  the  latter  is  not  bound  unless  he  ratifies  the  contract.  If  the 
professed  agent  contracts  in  his  own  name  he  is,  of  course,  personally 
liable  on  the  contract.  If,  however,  he  contracts  in  the  name  of  the 
ostensible  principal,  the  professed  agent  is  not  liable  on  the  contract, 
because  it  does  not  purport  to  be  his,  and  to  hold  him  liable  on  it  would 
be  to  make  a  contract,  not  to  construe  it**     This  rule  is  sustained  by 

T8  Raynor  v.  Grote,  15  Mees.  &  W.  359. 

7T  Baltimore  &  P.  Steamboat  Co.  v.  Atkins,  22  Pa.  522;  Graham  v.  Duck- 
wall,  S  Bush  (Ky.)  12;  Whitehead  y.  Potter,  2G  N.  C.  257;  Toland  v.  Mur- 
ray, IS  Johns.  (N.  Y.)  24. 

7  8  Jefts  V.  York,  4  Cush.  (Mass.)  371,  50  Am.  Dee.  791;  McCurdy  v.  Rogers, 
21  AVis.  199,  91  Am.  Dec.  4G8;  Hal]  y.  Huntoou,  17  Vt.  244,  44  Am.  Dec.  332; 
Lehman  v.  Feld  (C.  C.)  37  Fed.  852;  Simonds  v.  Heard,  23  Pick.  (Mass.)  120, 
34  Am.  Dec.  41;  Ogden  v.  Raymond,  22  Conn,  379,  58  Am.  Dec.  429;  Bailey 
V.  Cornell,  GG  Mich.  107,  33  N.  W.  50. 

7  0  BECKHAM  v.  DRAKE,  9  Mees.  &  W.  95;  Lutz  v.  Linthicum,  8  Pet  1G5, 
8  L.  Ed.  904;  Fullam  v.  Inhabitants  of  West  Brookfield,  9  Allen  (Mass.)  1; 
Deming  v.  Bullitt  1  Blackf.  (Ind.)  241;  White  v.  Skinner,  13  Johns.  (N.  Y.) 
307;  Hancock  v.  Yunker,  83  111.  208;  Stone  v.  Wood,  7  Cow.  (N.  Y.)  453,  17 
Am.  Dec.  529;  Taft  v.  Brewster,  9  Johns.  (N.  Y.)  334,  6  Am.  Dec.  280. 

80  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  G05;  Rogers  v.  March,  33  Me.  106; 
McKenzie  v.  Nevius,  22  Me.  138,  38  Am.  Dec.  291;  New  Castle  Mfg.  Co.  v. 
Railroad  Co.,  1  Rob.  (La.)  145,  3G  Am.  Dec.  680;  Merrick's  Estate,  5  Watts  & 
S.  (Pa.)  9. 

81  Kirkpatrick  v.  Stainer,  22  Wend.  244;  Oelricks  v.  Ford,  23  How.  49,  IG 
L.  Ed.  534;    Bray  v.  Kettell,  1  Allen  (Mass.)  80. 

82  Vawter  v.  Baker,  23  Ind.  G3;  Barham  v.  Bell,  112  N.  C.  131,  IG  S.  E. 
903.     But  see  Barry  v.  Page,  10  Gray  (Mass.)  398. 

83  Jenkins  v.  Hutchinson,  13  Q.  B.  744;  Lewis  v.  Nicholson,  IS  Q.  B.  503; 
Ballon  V.  Talbot  IG  Mass.  4G1,  8  Am.  Dec.  14G;  Bartlett  v.  Tuck  cm-.  104  Mass. 
336,  6  Am.  Rep.  240;   Noyes  v.  Loring,  55  Me.  408;   White  v.  Madison,  26  N. 


518  AGENCY.  (Ch.  12 

principle  and  authority,  though  there  are  some  decisions  which  hold 
him  liable  on  the  contract.^*  The  remedy  of  the  third  person  who  con- 
tracts with  the  professed  agent  in  reliance  upon  the  authority  which 
he  asserts,  but  does  not  possess,  must,  therefore,  be  sought  in  some 
other  form  of  action  than  an  action  on  the  contract.  If  the  agent 
fraudulently  represents  that  he  is  authorized  when  he  is  not,  he  is,  upon 
familiar  principles,  liable  in  an  action  of  tort,  for  deceit;  and  this, 
whether  the  representation  of  authority  is  express  or  is  merely  im- 
plied from  his  assuming  to  act  as  one  having  authority.*^  On  the 
other  hand,  if  he  honestly  but  mistakenly  believes  that  he  has  authority, 
he  is  not  liable  in  an  action  of  deceit.  The  effect  of  the  foregoing  doc- 
trines being  to  leave  a  person  who  enters  into  a  contract  with  another 
as  agent  without  remedy  where  the  professed  agent  has  acted  under 
a  mistaken  belief  that  he  has  authority,  as  in  the  case  of  a  supposed 
agent  acting  under  a  forged  power  of  attorney,  which  he  believes  to 
be  genuine,  has  led  the  courts  to  resort  to  the  fiction  of  an  implied 
contract  or  warranty  of  authority.^®  The  implied  undertaking  or  war- 
ranty of  the  agent  extends  as  well  to  cases  in  which  he  exceeds  his  au- 
thority as  to  cases  in  which  he  has  no  authority  at  all. 

Contracts  may  be  so  framed  as  to  leave  it  uncertain  whether  the 
agent  meant  to  contract  as  agent  or  to  make  himself  personally  liable. 
In  such  a  case  the  intention  and  understanding  of  the  parties,  as 
shown  by  the  evidence  of  the  contract,  must  govern.  If  an  agent  en- 
gages expressly  in  his  own  name  to  pay  a  sum  of  money  or  perform 
other  obligations,  he  is  personally  responsible  on  such  engagement, 
although  he  describes  himself  as  agent,  and  was  duly  authorized  to 
enter  into  such  an  engagement  for  his  principal.  If  he  uses  his  own 
name,  and  not  the  name  of  his  principal,  he  is  personally  liable,  and  the 

y.  117;  Dung  v.  Parker,  52  N.  Y.  4<M;  Duncan  v,  Niles,  32  111.  532,  83  Am. 
Dec.  293:  McCnrdy  v.  Rogers,  21  Wis.  199,  91  Am.  Dec.  4GS;  Sheffield  v. 
Ladue,  IG  Minn.  388  (Gil.  346),  10  Am.  Rep.  145;  Cole  v.  O'Brien,  34  Neb.  68, 
51  N.  W.  316,  33  Am.  St.  Rep.  616;    Senter  v.  Monroe,  77  Cal.  347,  19  Pac.  580. 

84  Roberts  v.  Button,  14  Vt.  195;  Weare  v.  Gove,  44  N.  H.  196.  And  see 
Terwilliger  v.  Murphy,  104  Ind.  32,  3  N.  E.  404;  Solomon  v.  Penoyar,  89  Mich. 
11,  50  N.  W.  644. 

8  0  See  Pothill  v.  Walker,  3  Barru  &  Aid.  114;  Randell  v.  Trimen,  18  C. 
B.  786;  SMOUT  v.  ILBERY,  10  Mees.  &  W.  1;  May  v.  Telegraph  Co.,  112 
Mass.  90;  Kroeger  v.  Pitcairn,  101  Pa.  311,  47  Am.  Rep.  718;  Moyes  v.  Loring. 
55  Me.  408;  Dung  v.  Parker,  52  N.  Y.  494;  Duncan  v.  Niles,  32  111.  532,  83 
Am.  Dec.  293. 

secollen  v.  Wright,  8  El.  &  Bl.  647;  Richardson  v.  Williamson,  L.  R.  6 
Q.  B.  276;  Oliver  v.  Bank  of  England  (1902)  1  Ch.  210;  Batlzen  v.  Nicolay, 
53  N.  Y.  467;  Simmons  v.  More,  100  N.  Y.  140,  2  N.  E.  640;  Taylor  v.  Nostrand, 
134  N.  Y.  108,  31  N.  E.  246;  Lane  v.  Corr,  156  Pa.  250,  25  Atl.  830;  Patter- 
son V.  Lippincott,  47  N.  J,  Law,  457,  1  Atl.  506,  54  Am.  Rep.  178;  Farmers' 
Co-op.  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N.  E.  110,  12  L.  R.  A.  346,  21 
Am.  St.  Rep.  846;  Seeberger  v.  McCormick,  178  111.  404,  53  N.  E.  340, 


§  275)  EFFECT  OF  THE  RELATION.  519 

fact  that  he  uses  the  word  "agent"  after  his  name  will  not  alter  the 
case  unless  the  wording  of  the  contract  shows  that  it  was  intended  that 
the  principal  should  be  bound.*' 

SAME— UNDISCLOSED  PRINCIPAI^NAME  UNDISCLOSED. 

275.    Where  an  agent  enters  into  a  contract,  disclosing  th.e  existence, 
but  not  tlie  name,  of  his  principal, 

(a)  He  is  not  personally  liable  if  he  contracted  as  agent  only,  and  the 

other  party  so  understood. 

(b)  If  credit  \xra,s  given  to  the  agent,  the  other  party  may  hold  him 

personally,  or  may  hold  the  undisclosed  principal,  at  his  elec- 
tion. 

(c)  Unless  the  contrary  clearly  appears,  it  will  be  assumed  that  the 

other  party  intended  to  accept  the  alternative  liability  of  agent 
or  principal. 

(d)  In   the   case   of   negotiable   instruments,    an   unnamed   principal 

cannot  be  sued. 

A  man  "has  a  right  to  the  character,  credit,  and  substance  of  the 
person  with  whom  he  contracts."  If,  therefore,  he  enters  into  a  con- 
tract with  an  agent  who  does  not  give  his  principal's  name,  the  pre- 
sumption is  that  he  is  invited  to  give  credit  to  the  agent;  still  more  if 
the  ggent  does  not  disclose  his  principal's  existence.  In  the  last  case 
invariably,  in  the  former  case  within  certain  limits,  the  party  who  con- 
tracts with  an  agent  on  these  terms  gets  an  alternative  right,  and 
may  elect  to  sue  the  agent  or  the  principal  upon  the  contract.**^ 

8  7  Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41;  Davis  v.  Eng- 
land, 141  Mass.  587,  6  N.  E.  731;  Bickford  v.  Bank,  42  111.  238,  89  Am.  Dec. 
436;  Stone  v.  Wood,  7  Ck)w.  (N.  Y.)  453,  17  Am.  Dec.  529;  Barker  v.  Insur- 
ance Co.,  3  Wend.  (N.  Y.)  94,  20  Am.  Dec.  664;  Duvall  v.  Craig,  2  Wheat. 
45,  4  L.  Ed.  ISO;  Woodbridge  v.  Hall,  47  N.  J.  Law,  388,  1  Atl.  492;  Avery 
V.  Dougherty,  102  Ind.  443,  2  N.  E.  123,  52  Am.  St.  Rep.  680 ;  Bean  v.  Mining 
Co.,  66  Cal.  451,  6  Pac.  86,  56  Am.  Rep.  106;  Michael  v.  Jones,  84  Mo.  578; 
Simpson  v.  Garland,  76  Me.  203;  Bradstreet  v.  Baker,  14  R.  I.  546.  In  some 
jurisdictions,  however,  it  has  been  held  that  where  such  words  as  "agent," 
"trustee,"  and  the  like  are  affixed  to  the  name  of  a  party  to  the  contract, 
tliey  are  prima  facie  descriptive  only,  but  that  it  may  be  shown  by  extrinsic 
evidence  that  they  were  intended  and  understood  by  the  parties  as  deter- 
mining the  character  in  which  he  contracted.  Pratt  v.  Beaupre,  13  Minn.  187 
(Gil.  177);  Deering  v.  Thom,  29  Minn.  120,  12  N.  W.  350;  Peterson  v.  Homan, 
44  Minn.  166,  46  N.  W.  303,  20  Am.  St.  Rep.  5CA;  Rhone  v.  Powell,  20  Colo. 
41,  36  Pac.  899.  Cf.  Rowell  v.  Oleson,  .32  Minn.  288,  20  N.  W.  227.  American 
Bonding  &  Trust  Co.  v.  Talcahashi.  49  C.  C.  A.  267,  111  Fed.  125;  Hayes  v. 
Crane,  48  Minn.  39,  50  N.  W.  925.  As  to  the  rules  applicable  to  negotiable 
instruments,   see  TifCany,  Ag.  336  et  seq. 

8  8  Kay  ton  v.  Bamett,  116  N.  Y.  625,  23  N.  E.  24;  Merrill  v.  Ken  yon,  48 
Conn.  314,  40  Am.  Rep.  174;  Appeal  of  National  Shoe  &  Leather  Bank,  55 
Conn.  469,  12  Atl.  C46. 


520  AGENCY.  (Ch.  12 

Where  an  agent  contracts  as  agent,  and  discloses  the  existence  of  his 
principal,  but  does  not  disclose  his  name,  the  rights  and  liabilities  of 
agent  and  principal,  as  regards  the  other  party  to  the  contract,  must 
depend  on  the  construction  of  its  terms.  If  it  clearly  appears  that  the 
intention  was  to  contract  as  agent  only,  and  that  the  other  party  so  un- 
derstood, the  agent  cannot  be  held  liable.^®  If,  on  the  other  hand,  it 
appears  from  the  face  of  the  contract,  or  from  the  conduct  of  the  par- 
ties, that  credit  was  given  to  the  agent,  and  that  the  other  party  in- 
tended to  hold  him  liable  on  the  contract,  he  will  be  personally  liable. 
And  it  will  be  assumed,  in  the  absence  of  words  strongly  and  distinctly 
expressive  of  agency,  that  one  who  deals  with  an  agent  for  an  un- 
named principal  intended  to  take  the  alternative  liability  of  the  prin- 
cipal or  the  agent.®**  An  agent,  therefore,  to  escape  personal  liability, 
should  always  either  use  his  principal's  name,  or  use  terms  that  will 
clearly  show  that  the  contract  was  only  intended  to  bind  his  principal. 

To  the  rule  that,  where  an  agent  contracts  for  an  undisclosed  prin- 
cipal, the  other  party  is  entitled  to  hold  the  principal  liable,  there  is 
an  exception  in  the  case  of  negotiable  instruments.  If  a  person  signs 
a  negotiable  note  as  "agent,"  without  any  words  in  the  note  to  show 
who  the  principal  was,  he,  only,  is  liable.  The  payee  cannot  prove 
who  the  principal  was,  and  hold  him  liable.'*^ 

89  Fleit  V.  Murton,  L.  R.  7  Q.  B.  126;  Southwell  v.  Bowditch,  1  C.  P.  Div. 
(C.  A.)  374 ;   Berry  v.  Brown,  107  N.  Y.  659,  14  N.  E.  289. 

80  Thompson  v.  Davenport,  9  B.  &  C.  78;  Bell  v.  Tea^ue,  85  Ala.  211,  3 
South.  801;  Wheeler  v.  Keed,  36  111.  81;  Kean  v.  Davis,  20  N.  J.  Law, 
425 ;   Murphy  v.  Helmrich,  66  Cal.  69,  4  Pac.  958. 

81  Williams  v.  Bobbins,  16  Gray  (Mass.)  77,  77  Am.  Dec.  396;  Tucker  Mfg. 
Co.  v.  Fairbanks,  98  Mass.  101 ;  Davis  v.  England,  141  Mass.  587,  6  N.  E.  731 ; 
Arnold  v.  Sprague,  34  Vt.  402;  Sturdivant  v.  Hull,  59  Me.  172,  8  Am.  Rep. 
409  (cf.  Rendell  v.  Harriman,  75  Me.  497,  46  Am.  Rep.  421);  Collins  v.  In- 
surance Co.,  17  Ohio  St.  215,  93  Am.  Dec.  612;  Ohio  Nat.  Bank  v.  Cook,  38 
Ohio  St.  442;  Robinson  v.  Bank,  44  Ohio  St  441,  8  N.  E.  583,  58  Am.  Rep. 
829;  Williams  v.  Bank,  83  Ind.  237;  Hypes  v.  Griffin,  89  111.  134,  31  Am.  Rep. 
71;  Scanlan  v.  Keith,  102  111.  634,  40  Am.  Rep.  624.  In  many  jurisdictions, 
however,  it  is  held  that  if  a  person  signs  a  negotiable  instrument  as  "agent,"' 
although  the  word  agent  is  prima  facie  mere  descriptio  personae,  parol  evi- 
dence is  admissible  between  the  original  parties,  and  against  a  purchaser 
with  notice,  to  show  that  it  was  the  intention  to  bind  the  principal,  and  not 
the  agent,  and  that  if  such  intention  is  shown  it  will  be  given  effect.  Metcalf 
V.  Williams,  104  U.  S.  93,  26  L.  Ed.  665;  Case  Mfg.  Co.  v.  Soxman,  138  U. 
S.  431,  11  Sup.  Ct.  360,  34  L.  Ed.  1019;  Kean  v.  Davis,  21  N.  J.  Law,  688, 
47  Am.  Dec.  182;  Brockway  v.  Allen,  17  Wend.  (N.  Y.)  40;  Laflin  &  Rand 
Powder  Co.  v.  Sinsheimer,  48  Md.  411,  30  Am.  Rep.  472;  Lockwood  v.  Coley 
(C.  C.)  22  Fed.  192;  Martin  v.  Smith,  65  Miss.  1,  3  South.  33;  Keidan  v. 
Winegar,  95  Mich.  430,  54  N.  W.  901,  20  L.  R.  A.  705;  Second  Nat.  Bank  v. 
Steel  Co.,  155  Ind.  581,  58  N.  E.  833;  Brunswick-Balke-Collender  Co.  v.  Boutell, 
45  Minn.  21,  47  N.  W.  261;  McClellan  v.  Reynolds,  49  Mo.  312;  Kline  v. 
Bank.  50  Kan.  91.  31  Pac.  688.  18  L.  R.  A.  5.33,  34  Am.  St.  Rep.  107;  Miller 
v.  Way,  5  S.  D.  468,  59  N.  W.  467.     See  Tiffany,  Ag.  330  et  seq. 


§  276)  EFFECT  OF  THE  RELATION.  '  521 

It  has  been  held  that  where  one  who  is  in  fact  the  real  principal 
has,  under  the  circumstances  above  stated,  contracted  as  ostensible 
agent  of  an  unnamed  principal,  he  may,  as  against  the  party  with 
whom  he  contracted,  repudiate  the  character  of  agent,  and  adopt  that 
of  principal,  though  the  effect  of  this  is  to  deprive  the  other  party  of 
the  alternative  liability  of  the  agent  or  the  unnamed  principal, °^  since, 
the  supposed  principal  being  unnamed,  the  other  party  cannot  have 
contracted  in  reliance  upon  him  personally. 


SAME— UNDISCLOSED  PRINCIPAL— EXISTENCE  UNDISCLOSED. 

276.   Wliere  an  agent  enters  into  a  contract  on  behalf  of  his  principal, 
Meithout  disclosing  the  principal's  existence, 

(a)  The  other  party  may,  at  his  election,  hold  either  the  principal 

or  the  agent,  except— 

(1)  Where  the  contract  is  nnder  seal  or  a  negotiable  instrument. 

(2)  'Where  the  terms  of  the  contract  are  incompatible  ivith  the 

eidlstence  of  agency. 

(3)  W^here  the  other  party  has  once  made  his  election  to  hold  one 

or  the  other. 

(4)  Where  the  principal,  iv^hile  exclusive  credit  was  given  to  the 

agent,  has  settled  \eith  the  agent  for  TPhat  he  has  received. 

(b)  The  principal  may  sue  on  such  a  contract,   subject  to  the  other 

party's  right  to  set  up  any  defense  he  might  have  used  against 
the  agent. 

If  the  agent  acts  on  behalf  of  a  principal  whose  existence  he  does 
not  disclose,  the  other  contracting  party,  subject  to  exception  in  the 
case  of  deeds  or  other  instruments  under  seal,®^  and  in  the  case  of 
negotiable  instruments,**  is  entitled  to  elect  whether  he  will  treat  prin- 
cipal or  agent  as  the  party  with  whom  he  dealt,®^  The  reason  of  this 
rule  is  that,  if  a  person  enters  into  a  contract  with  another,  he  is  en- 

»2  Schmalz  v.  Avery,  16  Q.  B.  655. 

03  Schach  v.  Anthony,  1  Maule  &  S.  573;  Berkeley  v.  Hardy,  8  Dowl.  &  R. 
102;  Machesney  v.  Brown  (C.  C.)  29  Fed.  145;  Guyon  v.  Lewis,  7  Wend.  (N. 
Y.)  26;  Kiersted  v.  Railroad  Co..  69  N.  Y.  343,  25  Am.  Rep.  199;  El  well  v. 
Shaw.  16  Mass.  42,  8  Am.  Dec.  12G;  Fullam  v.  Inhabitants  of  West  Brookfield, 
9  Allen  (Masa)  1.  An  undisclosed  principal  cannot  maintain  an  action  on  an 
instrument  under  seal.  Schach  v.  Anthony,  supra;  Berkeley  v.  Hardy,  supra; 
Spencer  v.  Field,  10  Wend-  (N.  Y.)  88;  Schaefer  v.  Henkel,  75  N.  Y.  378; 
Henricus  v.  Englert,  137  N.  Y.  488.  33  N.  E.  550. 

»<  Ante.  p.  520,  note,  21. 

flo  Merrill  v.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174;  Irvine  v.  Watson,  5 
Q.  B.  Div.  414;  Bacon  v.  Rupert,  39  Minn.  512,  40  N.  W.  832;  Porter  v.  Day, 
44  111.  App.  256;  Hubbard  v.  Ten  Brook,  124  Pa.  291,  16  Atl.  817,  2  L.  R.  A. 
823,  10  Am.  St.  Rep.  585;  WELCH  v.  GOODWIN.  123  Mass.  71,  25  Am.  Rep. 
24;  Baldwin  v.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324;  Holt  v.  Ross,  54  N. 
Y.  472,  13  Am.  Rep.  615;  Taintor  v.  Prendergast.  3  Hill  (N.  Y.)  72,  38  Am. 
Dec.  618;   Bacon  v.  Sondley,  3  Strob.  (S.  C.)  542,  51  Am.  Dec.  646. 


522  AGENCY.  (Ch.  12 

titled,  at  all  events,  to  the  liability  of  the  party  with  whom  he  supposed 
himself  to  be  contracting.  If  he  subsequently  discovers  that  such  per- 
son is  in  fact  the  representative  of  another,  he  is  entitled  to  choose 
whether  he  will  accept  the  actual  state  of  things,  and  sue  the  latter  as 
principal,  or  whether  he  will  adhere  to  the  supposed  state  of  things 
upon  which  he  entered  into  the  contract,  and  continue  to  treat  the 
agent  as  the  principal  party.  In  such  a  case  the  other  party  to  the  con- 
tract may  prove  the  agency  for  the  purpose  of  fixing  the  liabilities  of 
the  contract  on  the  principal,  but  the  agent  cannot  prove  the  agency 
for  the  purpose  of  escaping  Hability.  The  real  principal  is  entitled  to 
sue  on  such  a  contract,  but  the  other  party  may  set  up  any  defense 
which  he  might  have  used  against  the  agent, °® 

The  right  of  the  other  contracting  party  to  avail  himself  of  his 
alternative  right  to  sue  either  the  agent  or  the  undisclosed  principal 
may  in  various  ways  be  so  determined  that  he  is  limited  to  one  of  the 
two,  and  no  longer  has  the  choice  of  either  liability. 

(i)  In  the  first  place,  the  agent  may  contract  in  such  terms  that  the 
agency  is  incompatible  with  the  construction  of  the  contract.  Thus, 
where  an  agent,  in  making  a  charter  party,  described  himself  therein 
as  owner  of  the  ship,  it  was  held  that  he  could  not  be  regarded  as 
agent.  "^ 

(2)  If  the  other  party  to  the  contract,  after  having  discovered  the 
existence  of  the  undisclosed  principal,  does  anything  unequivocally  in- 
dicating that  he  adopts  either  principal  or  agent  as  the  party  liable  to 
him,  his  election  is  determined,  and  he  cannot  afterwards  sue  the 
other.^^  So,  too,  if,  before  he  ascertains  the  fact  of  agency,  he  sues 
the  agent  and  obtains  judgment,  he  cannot  afterwards  recover  against 
the  principal.^ ^  But  the  mere  bringing  of  an  action,  or  other  recog- 
nition of  the  liability  of  one  of  the  parties,  while  in  ignorance  of  the 
agency,  would  not  thus  determine  his  rights,  "for  it  may  be  that  dn 

0  6  Taintor  v.  Preiidergast,  3  Hill  (N.  Y.)  72,  38  Am.  Dec.  61S;  Ruiz  v. 
Norton,  4  Cal,  355,  60  Am.  Dee.  61S;  Parker  v.  Cochrane,  11  Colo.  363,  18 
Pac.  209;  Foster  v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am.  Dec.  604;  Gilpin  v. 
Howell,  5  Pa.  41,  45  Am.  Dec.  720;  Rosser  v.  Darden,  82  Ga.  219.  7  S.  E,  919, 
14  Am.  St.  Rep.  152;  Ames  v.  Railroad  Co.,  12  Minn,  412  (Gil.  29.5);  Elkins 
V,  Railroad  Co.,  19  N.  H.  337,  51  Am.  Dec.  184 ;  Tutt  v.  Brown,  5  Litt.  (Ky.) 
1,  15  Am.  Dec.  33;  Hunter  v.  Giddings,  97  Mass.  41,  93  Am.  Dec.  54;  Winches- 
ter V.  HoAvard,  97  Mass.  303,  93  Am.  Dec.  93;  Wood  v.  Bank,  129  Mass.  358, 
37  Am.  Rep.  3G6;  Bernshouse  v.  Abbott,  45  N.  J.  Law,  531,  46  Am.  Rep.  789. 

97  Humble  v.  Hmiter,  12  Q.  B.  310. 

98  Paterson  v,  Gandasequi,  15  East,  62;  Kingsley  v.  Davis,  104  Mass.  178; 
Coleman  v.  Bank,  53  N.  Y.  388;  Cobb  v.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51; 
Schepflin  v.  Dessar,  20  Mo.  App.  569.     Contra.  Beymer  v.  Bonsall,  79  Pa.  298. 

99  Priestlie  v.  Fernie.  3  Hurl.  &  C.  977;  Kingsley  v.  Davis,  104  Mass. 
178.  Contra  (where  judgment  is  not  discharged),  Blymer  v.  Bonsall,  79  Pa. 
298;  Brown  v.  Pveinian,  48  App.  Div.  295,  62  N.  Y.  Supp.  663.  Cf.  Maple  v. 
Railroad  Co.,  40  Ohio  St  313,  48  Am.  Rep.  685. 


§  277)  EFFECT    OF   THE    RELATION.  523 

action  against  one  might  be  discontinued  and   fresh  proceedings  be 
well  taken  against  the  other."  ^°° 

(3)  Again,  if,  while  exclusive  credit  is  given  to  the  agent,  the  un- 
disclosed principal  pays  the  agent  for  the  price  of  goods  sold  to  him, 
he  cannot  be  sued  when  he  is  discovered  to  be  the  purchaser.  If  a 
person  buys  goods  from  another  on  behalf  of  a  principal  whose  ex- 
istence he  does  not  disclose,  and  the  principal,  before  he  is  known  to 
be  principal,  pays  the  price  to  the  agent,  the  principal  cannot  be  sued 
by  the  seller.^°^  But  the  case  is  dififerent  where  the  existence  of  a 
principal  is  known,  though  his  name  is  not  disclosed.  There  the  other 
contracting  party  presumably  looks  beyond  the  agent  to  the  credit  of 
the  principal.  "The  essence  of  such  a  transaction  is  that  the  seller,  as 
an  ultimate  resource,  looks  to  the  credit  of  some  one  to  pay  him  if  the 
agent  does  not.  Till  the  agent  fails  in  payment,  the  seller  does  not 
want  to  have  recourse  to  this  additional  credit ;  it  remains  in  the  back- 
ground. But  if,  before  the  time  comes  for  payment,  or  before,  on  non- 
payment by  the  agent,  recourse  can  fairly  be  had  to  the  principal,  whose 
credit  still  remains  pledged,  the  principal  can  pay  or  settle  his  account 
with  his  own  agent,  he  vv'ill  be  depriving  the  seller,  behind  the  seller's 
back,  of  his  credit."  ^""^ 


SAME— FRAUD  OF  AGENT. 

277.    If  an  agent  is  guilty  of  fraud  in  entering  into  a  contract  on  be- 
half of  Ms  principal, 

(a)  Botli  lie  and  his  principal  are  liable,  if  he  acted  vnthin  the  scope 

of  his  employment. 

(b)  He,  but  not  his  principal,  is  liable  if  he  acted  ivithout  the  scope 

of  his  employment. 
^c)    In  either  case,  subject  to  the  conditions  mentioned  in  treating  of 
fraud,  the  other  party  may  avoid  the  contract. 

The  principal  is  liable  to  an  action  for  deceit  for  the  fraud  of  his 
agent,  if  the  fraud  was  committed  in  the  ordinary  course  of  his  em- 
ployment.^"^     The  liability  of  the  principal  is  in  no  wise  different  from 

100  Priestly  v.  Fernie,  3  Hurl.  &  C.  984;  Gardner  v.  Peaslee,  143  Mass.  382, 
9  N.  E.  833;  Cobb  v.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51;  Ferry  v.  Moore, 
18  Til.  App.  135;    Kinssley  v.  Davis.  104  Mass.  178. 

101  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  599;  Fradley  v.  Hyland  (C.  C.)  37 
Fed.  49,  2  L.  R.  A.  749;  Clealand  v.  Walker,  11  Ala.  1058,  46  Am.  Dec.  238; 
Thomas  v.  Atkinson,  38  Ind.  248.  It  is  open  to  question  whether  settlement 
with  the  agent  on  the  part  of  the  principal  is  a  defense  unless  the  principal 
was  induced  by  words  or  conduct  of  the  other  party,  sufficient  to  create  an 
estoppel,  to  believe  that  settlement  had  been  made  by  the  agent.  See  Irvine 
V.  Watson,  5  Q.  B.  Div.  102,  414;    Tiffany,  Ag.  235,  240. 

102  Irvine  v,  Watson,  5  Q.  B.  Div.  107  (Ct.  App.)  414. 

108  Barwick  v.  Bank,  L.  R.  2  Exch.  259;   Jeffrey  v.  Bigelow,  13  Wend.  (N. 


524  AGENCY.  (Ch.  12 

that  of  an  employer  who  is  responsible  for  wrongful  acts  done  by  those 
in  his  service,  within  the  scope  of  their  employment.  A  man  is  equally 
liable  for  the  neg-Iig-ence  of  his  coachman,  who  runs  over  a  foot  pas- 
senger in  driving  his  master's  carriage  from  the  house  to  the  stables, 
and  for  the  fraud  of  his  agent,  who,  being  instructed  to  obtain  a  pur- 
chaser for  certain  goods,  obtains  one  by  false  statements  as  to  the 
quality  of  the  goods.  But,  if  the  person  employed  act  beyond  the 
scope  of  his  employment,  he  no  longer  represents  his  employer  to  bind 
him  by  tort  or  contract.^"*  Where  an  agent,  for  instance,  was  em- 
ployed to  sell  a  log  of  mahogany,  but  was  not  authorized  to  warrant 
its  soundness,  and  he  did  so  knowing  it  to  be  unsound,  it  was  held  that 
the  employer  was  not  liable  for  deceit,  and,  further,  that  the  contract 
could  not  be  avoided  because  the  parties  could  no  longer  be  replaced 
in  their  previous  positions,  for  the  log  had  been  sawed  up  and  partly 
used.^"'*  The  rights  of  the  parties  may  be  stated  to  be  as  follows:  If 
the  agent  commits  a  fraud  in  the  course  of  his  employment,  he  is  li- 
able,^'** and  so  is  his  principal. ^°''  If  he  commits  a  fraud  outside  the 
scope  of  his  authority,  he  would  be  liable,  but  not  his  principal.^**'  In 
either  case  the  other  party  would  be  entitled  to  avoid  the  contract  upon 
the  conditions  described  in  treating  of  the  effect  of  fraud.^*** 

DETERMIXATIOX  OF  THE  RELATION. 

278.    The  authority  of  an  agent  may  be  determined-^ 

(a)  By  agreement;    and  this  may  be: 

(1)  By  performance  of  the  object  of  the  agencye 

(2)  By  efflux  of  a  specified  time. 

(3)  By  revocation  or  renunciation  in  accordance  Tvith  the  express 

or  implied  terms  of  the  contract. 

(b)  By  the  act  of  one   of  the   parties,   revoking  or  renouncing   the 

agency  in  breach  of  the  contract  of  employment.      The  author- 
ity is  revoked,  though  the  contract  is  broken. 
EXCEPTIOXS— (1)    Authority    cannot    be    revoked    where    it    is 

coupled  xc^ith  an  interest. 
(2)    Notice  of  the  revocation  must  be  given  those  to  whom   the 
agent  has  been  held  out. 

Y.>  518.  28  Am,  Dec.  476;  Smith  v.  Tracy,  3G  N.  T.  79;  Locke  v.  Stearns,  1 
Mete.  CNIass.)  .5G0,  35  Am.  Dec.  382;  Wolfe  v.  Pugh,  101  Incl.  293;  Du  Souchet 
V.  Dutcher,  113  Ind.  249,  15  N.  E.  459;  Ehoda  v.  Annis,  75  Me.  17,  46  Am. 
Rep.  354:  McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6  L.  R.  A.  121, 
17  Am.  St.  Rep.  178. 

lot  Udell  V.  Atherton,  7  Hurl.  <&  N.  172;  Nichols  v.  Bruns,  5  Dak.  28,  37  N. 
W.  752. 

105  Udell  V.  Atherton,  7  Hurl.  &  N.  172. 

106  Campbell  v.  Hillm.an,  15  B.  Mon.  (Ky.)  508,  61  Am.  Dec.  195;  Clark  v. 
Tx>vering,  37  Minn.  120,  33  N.  W.  776;  Hedden  v.  Griffin.  136  Mass.  229,  49 
Am.  Rep.  25;    Kroeger  v.  Pitcairn.  101   Pa.  311,  47  Am.  Rep.  718. 

107  Note  103,  supra.  los  Notes  104,  105,  supra.        io»  Ante,  p.  234. 


§  278)  DETERMINATION    OF   THE    RELATION.  525 

(c)    By  operation  of  law.     This  results  from — 

(1)  The  destruction  of  the  subject-matter  of  the  agency. 

(2)  The  bankruptcy  of  either  party. 

(3)  The  marriage  of  a  feme  sole  principal. 

(4)  The  insanity  of  either  party. 

(5)  The  death  of  either  party. 

EXCEPTION — An  authority  coupled  with  an  interest  is  not  revoked  by 
operation  of  law  in  such  cases. 

By  Agreement. 

Since  the  relation  of  principal  and  agent  is  that  of  employer  and 
employed  (a  relation  founded  on  mutual  consent),  it  follows  that  the 
relation  may  be  brought  to  a  close  by  the  same  process  which  created 
it, — the  agreement  of  the  parties.  This  may  be  by  an  agreement  ex- 
pressly entered  into,  after  the  creation  of  the  agency,  for  the  purpose 
of  terminating  it,  or  it  may  be  by  the  fulfillment  of  terms  expressed  or 
implied  in  the  contract  of  employment.  Where,  at  the  time  the  agency 
is  created,  its  duration  is  fixed,  then,  in  accordance  with  the  agreement, 
it  ceases  on  the  efflux  of  the  time  specified. ^^°  It  also  necessarily  ceases, 
where  no  time  is  specified,  when  the  object  to  which  the  agency  was 
expressly  limited  is  performed. ^^^  Again,  the  contract  of  employment 
may  contain  terms  allowing  the  agency  to  be  terminated  by  one  or 
either  party  on  certain  conditions.  A  revocation  or  renunciation  in  ac- 
cordance with  the  terms  of  the  contract  is  a  determination  of  the  agency 
by  agreement.^^^  Such  terms  may  be  expressed  or  implied.  Where 
the  contract  is  silent  as  to  the  right  to  revoke  or  renounce  the  au- 
thority, and  there  is  nothing  in  the  nature  of  the  contract  or  the  cir- 
cumstances to  show  a  contrary  intention,  the  authority  may  be  rightly 
revoked  or  renounced  at  any  time  on  notice. ^^* 

By  the  Act  of  the  Parties. 

We  have  just  seen  that  an  agency  may  be  revoked  or  renounced  in 
accordance  with  express  or  implied  terms  in  the  contract  of  employ- 
ment. Such  a  determination  of  the  agency,  though  in  a  sense  by  the 
acts  of  the  parties,  is  by  agreement.  The  contract  of  employment  is 
not  broken.  On  the  other  hand,  one  of  the  parties  may  revoke  or  re- 
nounce the  agency,  not  in  accordance  with  the  terms  of  the  contract, 
but  in  violation  of  them.  The  agency  in  this  case  is  determined  by 
the  act  of  the  party,  but  it  is  determined  contrary  to  agreement.     The 

110  Gundlach  v.  Fischer,  59  111.  172;    Danby  v.   Coutts,  29  Ch,  Div,  500. 

111  Benoit  v.  Inhabitants  of  Conway,  10  Allen  (Mass.)  528 ;  Moore  v.  Stone, 
40  Iowa,  259;    Short  v.  Millard,  GS  111.  292. 

112  Oregon  &  W.  Mortg.  Sav.  Bank  v.  Mortgage  Co.  (C.  C.)  35  Fed.  22; 
Adriance  v.  Rutherford,  57  Mich.  170,  23  N.  W.  718. 

113  Barrows  v.  Cushway,  37  :Mich.  481;  Kirk  v.  Hartman.  63  Pa.  97;  Cham- 
bers V.  Seay,  73  Ala.  372;  North  Carolina  State  Life  Ins,  Co.  v.  Williams,  91 
N,  C,  69,   49  Am.   Rep.  637. 


526  AGENCY.  (Ch.  12 

contract  of  employment  is  broken,  and  the  other  party  may  recover 
his  damages  for  the  breach,  as  in  the  case  of  any  other  breach  of  con- 
tract.^ ^*  The  authority,  however,  subject  to  certain  exceptions,  is  ef- 
fectually determined."'*  A  principal,  therefore,  may  revoke  the  au- 
thority of  his  agent,  though  in  doing  so  he  violates  the  contract  of 
employment;  and  the  acts  of  the  agent  after  such  revocation  will  not 
bind  the  principal. ^^^  This  power  of  revocation,  however,  is  subject 
to  the  limitation  already  explained, — that  a  principal  cannot,  by  private 
communications  with  his  agent,  limit  or  revoke  an  authority  which  he 
has  allowed  his  agent  to  assume  before  the  public.  He  will  be  bound 
by  the  acts  of  the  agent  which  he  has  given  other  persons  reason  to 
suppose  are  done  by  his  authority. ^^"^  As  we  have  already  seen,  a  hus- 
band may,  by  his  conduct  in  allowing  his  wife  to  deal  on  his  credit, 
constitute  her  his  agent  to  pledge  his  credit.^^^  If  he  has  allowed  her 
to  so  deal  with  a  tradesman,  and  has  acquiesced  by  paying  her  bills, 
this  tradesman  may  assume  that  her  authority  continues  until  he  re- 
ceives notice  to  the  contrary.  In  the  absence  of  such  a  notice,  the 
tradesman's  right  to  hold  the  husband  cannot  be  affected  by  the  hus- 
band's private  revocation  of  her  authority.  In  the  absence  of  such  au- 
thority arising  from  the  conduct  of  the  husband,  he  is  entitled,  as 
against  persons  dealing  with  the  wife,  to  revoke  any  express  or  im- 
plied authority  which  he  may  have  given  her,  and  to  do  so  without 
notice  to  persons  so  dealing.  Where  a  wife,  after  being  forbidden  by 
her  husband  to  pledge  his  credit,  purchased  goods  on  his  credit  from  a 
tradesman  who  had  never  before  so  dealt  with  her,  it  was  held  that  he 
could  not  hold  the  husband,  though  he  had  no  notice  of  the  latter's  re- 
fusal to  authorize  her  dealings.  "The  tradesman  must  be  taken  to 
know  the  law;   he  knows  that  the  wife  has  no  authority,  in  fact  or  im 

114  Howard  v.  Daly,  61  N.  Y.  3G2,  19  Am.  Rep.  2S5;  Weed  v.  Burt,  78  N.  Y. 
192;  Lewis  v.  Insurance  Co.,  61  Mo.  534;  James  v.  Allen  Co.,  44  Ohio  St. 
226,  6  N.  E.  246,  58  Am.  Rep.  821;  Richardson  v.  Machine  Works,  78  Ind. 
422,  41  Am.  Rep.  584.     As  to  the  measure  of  damages,  see  Mech.  Ag.  §  622. 

115  Mech.  Ag.  §  204  (and  cases  there  cited);  Chambers  v.  Seay,  73  Ala.  372; 
Blaclcstone  v.  Buttermore,  53  Pa.  266;  Allen  v.  Watson,  16  Johns.  (N.  Y.) 
205;  Wallcer  v.  Penisou,  86  III.  142;  Attrill  v.  Patterson,  58  Md.  226;  Jones 
V.  Harris,  59  Miss.  214. 

116  Tucker  v.  Lawrence,  56  Vt  467;  Simpson  v.  Carson,  11  Or.  361,  8  Pae. 
325 ;  Darrow  v.  St.  George,  8  Colo.  592,  9  Pac.  791 ;  Providence  Gas  Burner 
Co.  V.  Barney,  14  R.  I.  18;    Johnson  v.  Youngs,  82  Wis.  107,  51  N.  W.  1095. 

iiT  Debenham  v.  Mellon,  5  Q.  B.  Div.  394,  6  App.  Cas.  24;  Claflin  v.  Len- 
heim,  66  N.  Y.  301;  Baudouine  v.  Grimes,  64  Iowa,  370,  20  N.  W.  476; 
Diversy  v.  Kellogg.  44  111.  114,  92  Am.  Dec.  154;  Wright  v.  Hcrrick,  128  Masf5. 
240;  Southern  Life  Ins.  Co.  v.  McCain,  96  U.  S.  84,  24  L.  Ed.  653;  Tier  v. 
Lampsion,  35  Vt.  179.  82  Am.  Dec.  634;  Capen  v.  Insurance  Co.,  25  N.  J.  Law, 
67,  44  Am.  Dee.  412;  Howe  Mach.  Co.  v.  Simler,  59  Ind,  307;  Van  Duseu  v. 
Star  Quartz  Min.  Co.,  36  Cal.  571,  95  Am.  Dec.  209. 

ii«  Ante,  p.  501. 


§  278)  DETERMINATION    OF   THE    RELATION.  527 

law,  to  pledge  the  husband's  credit,  even  for  necessaries,  unless  he 
expressly  or  impliedly  gives  it  to  her,  and  that  what  the  husband  gives 
he  may  take  away."  ^^® 

A  further  limitation,  in  favor  of  the  agent,  of  the  principal's  power 
of  revocation,  is  that  "an  authority  coupled  with  an  interest  is  irrevoca- 
ble." ^-°  By  "interest,"  as  the  term  is  here  used,  is  meant  something 
more  than  the  advantage  which  the  agent  may  derive  from  a  continu- 
ance of  the  authority,  or  the  inconvenience,  or  even  the  loss,  which 
he  may  suffer  by  its  revocation.  These  are  not  such  interests  as  will 
prevent  a  revocation  by  the  principal.  "Where  an  agreement,"  it  has 
been  said,  "is  entered  into  on  a  sufficient  consideration,  whereby  an 
authority  is  given  for  the  purpose  of  conferring  some  benefit  to  the 
donee  of  the  authority,  such  an  authority  is  irrevocable.  This  is  wha*: 
is  usually  meant  by  an  authority  coupled  with  an  interest."  ^^^  This, 
however,  is  too  broad.  "To  impart  an  irrevocable  quality  to  a  power 
of  attorney,  in  the  absence  of  any  express  stipulation,  and  as  a  result  of 
legal  principles  alone,  there  must  coexist  with  the  power  an  interest 
in  the  thing  or  estate  to  be  disposed  of  or  managed  under  the  power."  ^^^ 

Operation  of  Law. 

An  agency  may  also  be  revoked  by  operation  of  law  in  certain  cases. 
If  the  subject-matter  of  the  agency  is  extinguished  or  ceases  to  exist, 
this  will  revoke  the  agency.  It  has  been  held,  for  instance,  that  where 
two  persons  jointly  appoint  an  agent  to  take  charge  of  some  matter  in 
which  they  are  jointly  interested,  as  to  sell  real  estate  owned  by  them 
jointly,  a  severance  of  the  joint  interest  revokes  the  agency.^ ^^  And, 
where  a  landowner  employed  several  different  agents  to  act  for  him 
in  the  sale  of  the  same  tract  of  land,  a  sale  by  one  of  them  was  held 
a  revocation  of  the  authority  of  the  others.^ ^* 

The  bankruptcy  of  the  principal  determines  an  authority  given  while 
he  was  solvent.^ ^^ 


118  Debeuham  v.  Mellon,  5  Q.  B.  Div.  394. 

120  Hiitchins  v.  Hebbard,  34  N.  Y.  24;  Gutbrie  v.  Railway  Co.,  40  111.  109; 
Chambers  v.  Seay,  73  Ala.  372;  Wheeler  v.  Knaggs,  8  Ohio,  169;  Kindig  v. 
March,   15  Ind.  248. 

121  Smart  v.  Sanders,  5  C,  B.  89.'),  917. 

122  Hartley's  Appeal,  53  Pa.  212,  91  Am.  Dec.  207.  And  see  Hunt  v.  Rous- 
manier,  8  Wheat.  174,  7  L.  Ed.  27;  Blackstone  v.  Buttermore,  53  Pa.  266; 
Chambers  v.  Seay,  73  Ala.  373;  Ahvortb  v.  Seymour.  42  Minn.  526.  44  N.  W. 
1030;  Gilbert  v.  Holmes,  64  III.  548;  Oregon  &  W.  Mortg.  Sav.  Bank  v. 
Mortgage  Co.  (C.  C.)  35  Fed.  22;  Barr  v.  Schroeder,  32  Cal.  609;  Darrow  v. 
St.  George,  8  Colo.  .'592,  9  Pac.  791;   Tiffany,  Ag.  152  et  seq. 

125  Rowe  V.  Rand,  111  Ind.  206.  12  N.  B.  377. 
124  Ahern  v.  Baker,  34  Minn.  98,  24  N.  W.  341. 

126  Parker  v.  Smith,  16  East,  386;  Minett  v.  Forrester,  4  Taunt.  541. 


528  AGENCY.  (Ch.  12 

At  common  law,  the  marriage  of  a  female  principal  determines  an 
authority  given  while  sole/^° 

The  insanity  of  the  principal  annuls  or  suspends  an  authority  given 
while  sane/^^  but  subject  to  this  limitation,  namely,  that  where  a  per- 
son, while  sane,  holds  out  another  as  having  authority,  and  afterwards 
becomes  insane,  his  insanity  does  not  revoke  the  agent's  authority  as  to 
persons  to  whom  he  has  been  so  held  out,  and  who  have  no  notice  of 
the  principal's  condition. ^^^ 

The  death  of  the  principal  determines  at  once  the  authority  of  the 
agent,  leaving  the  third  party  without  a  remedy  upon  contracts  entered 
into  by  the  agent  when  ignorant  of  the  death  of  his  principal.^^®  The 
agent  in  such  case  is  not  personally  liable  as  having  contracted  on  be- 
half of  a  principal  who  did  not  exist ;  nor  is  the  estate  of  the  deceased 
liable,  for  the  authority  was  given  for  the  purpose  of  representing  the 
principal,  and  not  his  estate.^^"  Necessarily,  the  death  of  the  agent 
determines  the  agency/ ^^  And,  where  two  persons  are  jointly  ap- 
pointed agents  to  take  charge  of  a  particular  business  for  a  specified 


126  Anon.,  1  Salk.  399;  Brown  v.  Miller,  46  Mo.  App.  1;  Charnley  v.  Win- 
stanley,  5  East,  2GU. 

127  Davis  V.  Lane,  10  N.  H.  156;  Matthiessen  &  Welchers  Refining  Co.  v. 
McMahon's  Adm'r,  38  N.  J.  Law,  536.  "An  agent  always  acts  in  the  name  of 
the  principal.  Agency  presupposes  the  presence  of  the  principal  in  the  person 
of,  and  acting  through,  the  agent.  The  power  that  binds  is  not  that  of  the 
agent,  but  the  power  of  the  principal  acting  through  the  agent.  When  a 
person  loses  the  power  to  bind  himself  by  his  own  acts,  it  is  true,  as  a 
general  principle,  that  that  loss  works  a  like  loss  in  ail  those  upon  whom  he 
has  conferred  the  power  to  bind  him."     Motley  v.  Head,  43  Vt.  633. 

128  DREW  V.  NUNN,  4  Q.  B.  Div.  689;    Davis  v.  Lane,  10  N.  H.  156. 

129  Hunt  V.  Rousmanier,  8  Wheat  174,  5  L.  Ed.  589;  Davis  v.  Bank,  46  Vt 
728;  Webber  v.  Bridgman,  113  N.  Y.  600,  21  N.  E.  985;  Gait  v.  Galloway, 
4  Pet  331,  7  L.  Ed.  876;  Gale  v.  Tappan,  12  N.  H.  145,  37  Am.  Dec.  194; 
Home  Nat  Bank  v.  Waterman's  Estate,  134  111.  4G1,  29  N.  E.  503;  Travers 
V.  Crane,  15  Cal.  12;  Clayton  v.  Merrett,  52  Miss.  353;  Lewis  v.  Kerr,  17 
Iowa,  73 ;  Saltmarsh  v.  Smith,  32  Ala.-404;  Rigs  v.  Cage,  2  Humph.  (Tenn.)  350, 
37  Am.  Dec.  559;  Cleveland  v.  Williams,  29  Tex.  204,  94  Am.  Dec.  274; 
Staples  V.  Bradbury,  8  Greenl.  (Me.)  181,  23  Am.  Dec.  494;  Smith  v.  Smith, 
46  N.  C.  135;  Jenkins  v.  Atkins,  1  Humph.  (Tenn.)  293,  34  Am.  Dec.  648. 
But  see  Dick  v.  Page,  17  Mo.  234,  57  Am.  Dec.  267.  Payment  to  an  agent 
in  ignorance  of  his  principal's  death,  has  been  held  valid.  Cassiday  v.  Mc- 
Kenzie,  4  Watts  &  S.  (Pa.)  282,  39  Am.  Dec.  76.  It  has  been  held  that  where 
an  agent  sends  an  order  by  mail,  on  the  day  before  the  death  of  his  principal, 
to  a  nonresident  merchant,  and  the  latter  fills  the  order  within  a  reasonable 
time  in  ignorance  of  the  death  of  tlie  principal,  the  contract  is  binding  as  of 
the  day  the  order  was  deposited  in  the  mail,  Garrett  v.  Trabue,  82  Ala.  227, 
3  South.  149. 

180  Blades  v.  Free,  9  Barn.  &  C.  167. 

131  In  re  Merrick's  Estate,  8  Watts  &  S.  (Pa.)  402;  Jackson  Ins.  Co.  v. 
Partee,  9  Heisk.  (Tenn.)  296;  Lehigh  Coal  &  Nav.  Co.  T.  Mohr,  83  Pa,  228, 
24  Am.  Rep.  IGl. 


§  278)  DETERMINATION    OF   THE    RELATION.  529 

ferm  or  purpose,  the  agency  is  revoked  by  the  death  or  insanity  of  one 
of  them.^" 

Determination  of  an  agency  by  operation  of  law  does  not  take  place 
where  the  authority  is  coupled  with  an  interest.^^* 

132  Rowe  V.  Rand,  111  Ind.  206,  12  N.  B.  377;  Martlne  v.  Insurance  Co.,  53 
N.  Y.  339,  13  Am.  Rep.  529. 

183  Davis  V.  Lane,  10  N.  H.  160;  Hunt  v.  Rousmanier,  8  Wheat  174,  5  L. 
Ed.  589;  I'Cnapp  v.  Alvord,  10  Paige  (N.  Y.)  205;  Merry  v.  Lynch,  68  Me.  94; 
Travers  v.  Crane,  15  Cal.  12.  And  see  cases  above  cited;  Watson  v.  King,  4 
Camp.  274. 

Clabk  ObNT.  (2d  Ed.) — 34 


^ 


■^ 


530  QUASI  CONTRACT.  (Cli.  13 


CHAPTER  Xm. 

t 

1  QUASI  CONTRACT. 

^  279.  In  General. 

280.  Money  Paid  for  the  Use  of  Another. 

'  ,.,  281.  Money  Received  for  the  Use  of  Another. 

282.  Recovery  for  Benefits  Conferred. 


IN  GENERAL. 

279.  Ordinarily,  a  person  can  only  maintain  an  action  ex  contractu 
against  another  by  proving  a  contract  in  fact.  There  are  cir- 
cumstances, howevei',  under  T^hich  the  la-w  \vill  create  a  ficti- 
tious promise  for  the  purpose  of  allowing  the  remedy  by  action 
of  assumpsit.  The  obligation  is  not  a  contract,  but  a  quasi 
contract.     It  may  be  founded— 

(a)  Upon  the  judgment  of  a  court. 

(b)  Upon  a  statutory,  official,  or  customary  duty. 

(c)  Upon  the  principle  that  no  one  ought  ujijustly  to  enrich  him- 

self at  the  expense  of  another. 

As  we  have  seen  in  treating  of  the  nature  of  contract,  every  true 
contract  involves,  not  only  obligation,  but  agreement.  If  there  is  no 
agreement,  there  can  be  no  true  contract.  There  may  be  an  obligation, 
but,  unless  this  obligation  is  imposed  by  the  free  consent  of  the  par- 
ties, the  obligation  is  not  a  contractual  obligation. 

There  are,  however,  as  has  been  stated,  certain  obligations  which 
^rise  neither  from  tort  nor  from  contract,  but  which  are  imposed  or 
created  by  law  without  the  assent  of  the  party  bound,  and  which  are 
allowed  to  be  enforced  by  an  action  ex  contractu.  These  obligations 
are  not  contract  obligations,  for  there  is  no  agreement,  but  they  are 
clothed  with  the  semblance  of  contract  for  the  purpose  of  remedy. 
They  are  described  by  the  term  quasi  contracts.^ 

For  example,  obligation  may  arise  from  the  judgment  of  a  court  of 
competent  jurisdiction  ordering  something  to  be  done  or  forborne  by 
one  party  in  respect  to  another.  It  may  arise  from  entry  of  judgment 
by  consent  of  the  parties,  in  which  case  the  element  of  agreement  is 
present ;  but,  on  the  other  hand,  it  may  arise  against  the  will  of  the 
party  bound  thereby,  in  which  case  there  is  no  element  of  agreement, 
and   therefore   no  true  contract.     Such  an   obligation   is  quasi   con- 

1  Anson,  Cont.  (8th  Ed.)  361  et  seq.;  Keener,  Quasi  Cont.  c.  1;  Dusenbury 
V.  Speir,  77  N.  Y.  InO.  See,  also,  Lawson's  Bx'rs  v.  LaAvson,  16  Grat.  (Va.) 
230;  SCEVA  v.  TRUE,  5.3  N.  H.  027;  HERTZOG  V.  HERTZOG,  29  Pa.  465; 
Montgomei-y  v.  Waterworks  Co.,  77  Ala.  248. 


§  279)  IN    GENERAL  531 

tractual.*  As  we  liave  seen,  however,  in  the  classification  of  contracts, 
it  is  usual  to  divide  contracts  into  simple  contracts,  contracts  under 
seal,  and  "contracts  of  record,"  under  which  are  included  judgments.^ 

Again,  if  A.  has  paid  something  which  B.  ought  to  pay,  or  if  B.  has 
received  something  which  A.  ought  to  receive,  the  law  imposes  on  B. 
the  duty  to  make  good  to  A.  the  advantage  to  which  A,  is  entitled.  Or 
if  A.  has  obtained  money  from  B.  through  the  medium  of  oppression, 
imposition,  extortion,  or  deceit,  or  by  the  commission  of  a  trespass, 
such  money  may  be  recovered  back,  for  the  law  imposes  a  duty  on  the 
wrongdoer  to  restore  it  to  the  rightful  owner,  although  this  was  the 
very  opposite  of  his  intention.* 

It  is  obvious  that  the  duty  of  B.  in  such  cases  is  not  contractual. 
Nevertheless,  in  the  classification  of  contracts,  it  has  been  usual  to  di- 
vide simple  contracts  into  (i)  express  contracts;  (2)  contracts  implied 
in  fact ;  and  (3)  contracts  implied  in  law.  Under  this  classification  the 
term  "contracts  impHed  in  fact"  is  applied  to  contracts  in  which  the 
agreement  of  the  parties  is  evidenced  by  their  conduct,  and  which  are 
true  contracts,  in  distinction  to  contracts  in  which  the  agreement  is  evi- 
denced by  words  and  which  are  said  to  be  express ;  and  the  term 
"contract  implied  in  law"  is  applied  to  obligations  created  by  law,  or 
quasi  contracts.  "This  treatment  of  quasi  contract,"  says  Professor 
Keener,  "is,  in  the  opinion  of  the  writer,  not  only  unscientific,  and 
therefore  theoretically  wrong,  but  is  also  destructive  of  clear  thinking, 
and  therefore  vicious  in  practice.  It  needs  no  argument  to  establish 
the  proposition  that  it  is  not  scientific  to  treat  as  one  and  the  same  thing 
an  obligation  that  exists  in  every  case  because  of  the  assent  of  the  de- 
fendant, and  an  obligation  that  not  only  does  not  depend  in  any  case 
upon  his  assent,  but  in  many  cases  exists  notwithstanding  his  dissent."  " 

The  explanation  of  this  anomalous  classification,  which  includes  ob- 
ligations created  by  law  among  contracts,  is  to  be  found  in  the  law  of 
remedies.*  The  only  forms  of  action  at  common  law  were  actions  of 
tort  and  actions  of  contract.  Obligations  created  by  law  resemble  true 
contracts,  in  that  "the  duty  of  the  obligor  is  a  positive  one;  that  is. 
to  act.  In  this  respect  they  diflfer  from  obligations  the  breach  of 
which  constitutes  a  tort,  where  the  duty  is  negative;    that  is,  to  for- 


2  Keener,  Quasi  Cont.  16;  State  of  Louisiana  v.  Mayor,  etc.,  of  City  of 
New  Orleans,  109  U.  S.  285,  3  Sup.  Ct  211,  27  L.  Ed.  936;  O'BRIEN  v. 
YOUNG,  95  N.  Y.  428,  47  Am.  Rep.  64;  Rae  v.  Hulbert,  17  111.  .572;  Morse  v. 
Tappan,  3  Gray  (Mass.)  411 ;  Gutta-Percha  &  R.  Mfg.  Co.  v.  City  of  Houston,  108 
N.  Y.  27G,  15  N.  E.  402,  2  Am.  St.  Rep.  412;  Morley  v.  Lake  Shore  &  M.  S. 
Ry.,  146  U.  S.  162,  13  Sup.  Ct.  54,  36  L.  Ed.  925 ;  ante,  p.  47. 

8  Ante,  p.  8,  *  See  Dusenbury  v.  Speir,  77  N.  Y.  150. 

B  Keener,  Quasi  Cont.  3. 

6  See  Keener,  Quasi  Cont.  c.  1;  Anson,  Cont.  (Sth  Ed.)  3C0-364;  The  History 
of  Assumpsit,  by  Prof.  J.  B.  Ames,  2  Harv.  L.  R.  1-19,  53-69. 


532  QUASI  CONTRACT.  (Ch.  13 

bear.'  This  and  other  considerations  suggested  the  analogy  of  con- 
tract, rather  than  of  tort,  and  made  it  natural,  when  seeking  to  adapt 
the  remedy  to  the  right,  to  treat  obligations  created  by  law  as  contracts 
rather  than  torts.  An  action  of  debt  was  the  remedy  for  breach  of 
contract  based  on  executed  consideration,  where  such  breach  resulted 
in  a  liquidated  or  ascertained  money  claim,  and  also  where  a  statute  or 
the  common  law  or  custom  laid  a  duty  upon  one  to  pay  an  ascertained 
sum  to  another.  Assumpsit  was  primarily  an  action  to  recover  an  un- 
Hquidated  sum,  or  such  damages  as  the  breach  of  a  promise  had  oc- 
casioned to  the  promisee."  Owing  to  certain  inconveniences  attach- 
ing to  the  action  of  debt,  assumpsit  was  preferred  to  debt  as  a  form 
of  action,  and  by  degrees  the  scope  of  the  action  was  enlarged,  until 
the  action  of  assumpsit  came  to  be  used  instead  of  debt,  where  the 
contract  resulted  in  a  liquidated  claim,  and  a  money  debt  was  stated 
in  the  form  of  an  assumpsit  or  undertaking  to  pay  it.  Thus  it  came 
about  that  an  action  might  be  maintained  in  assumpsit  on  a  liquidated 
claim  or  debt;  and  when  the  breach  of  a  contract  resulted  in  such  a 
claim,  the  plaintiff  was  allowed  to  declare  in  the  form  of  a  short  state- 
ment of  the  debt,  based  upon  a  request  by  the  defendant,  as  for  goods 
sold,  money  lent,  work  and  labor  supplied,  etc.®  This  enabled  claims 
arising  from  contract  to  be  variously  stated  in  the  same  suit  "as  a 
special  agreement  which  had  been  broken,  and  as  a  debt  resulting  from 
an  agreement,  and  hence  imparting  a  promise  to  pay.  Such  a  mode 
of  pleading  was  called  an  indebitatus  count,  or  count  indebitatus  as- 
sumpsit." ^°  The  promise  in  such  cases,  resulting  from  the  terms  of 
the  agreement,  although  only  by  an  innovation  in  the  form  of  remedy 
made  the  basis  of  an  assumpsit,  was  actual,  and  not  a  mere  fiction.^^ 
The  form  of  action  thus  evolved,  however,  came  to  be  applied  to  those 
kinds  of  legal  liability  which  had  previously  given  rise  to  an  action  of 
debt,  though  void  of  the  element  of  agreement.  In  these  cases  the 
form  of  remedy  could  be  adapted  to  the  right  only  by  means  of  a  fic- 
tion, for  to  support  assumpsit  it  was  necessary  to  allege  a  promise,  and 
consequently,  to  meet  the  difficulty,  the  courts  adopted  the  fiction  of  a 
promise,  and  it  was  declared  that  a  promise  was  "implied  in  law."  ^* 
It  was  in  this  way  that  these  obligations  became  clothed  with  the 
semblance  of,  and  came  to  be  classed  as,  contracts.  "For  the  con- 
venience of  the  remedy,"  they  "have  been  made  to  figure  as  though  they 
sprung  from  contract,  and  have  appropriated  the  form  of  agree- 
ment." " 

I  2  Hai-v.  li.  R.  63. 

8  Anson.  Cont.  (8th  Ed.)  361. 

«  Id.  302;    SLADE'S  CASE,  4  Co.  Rep.  92. 

10  Anson.  Cont.  (8th  Ed.)  3U2.  12  Keener,  QnasI  Cont.  4-5. 

II  See  2  Harv.  L.  R.  56.  is  Anson,  Cont.  (Sth  Ed.)  362. 


§  280)  MONEY   PAID   FOR   THE   USE   OF  ANOTHER.  533 

Quasi  contracts  fall  under  three  classes:  ^*  (i)  Obligations  founded 
upon  a  record,  as  a  judgment;  ^"^  (2)  obligations  founded  upon  a  statu- 
tory,^® or  official,  or  customary  duty;^^  and  (3)  obligations  founded 
"upon  the  fundamental  principle  that  no  one  ought  unjustly  to  enrich 
himself  at  the  expense  of  another,"  ^^  as  the  obligation  to  repay  money 
paid  under  a  mistake  or  under  duress  or  compulsion,  the  obligation  of 
an  infant  to  pay  for  necessaries,  the  obligation  to  pay  for  benefits  con- 
ferred under  a  contract  unenforceable  because  within  the  statute  of 
frauds  which  the  party  who  has  received  the  benefit  refuses  to  carry 
out,  the  obligation  to  pay  for  benefits  conferred  under  a  contract  where 
full  performance  is  prevented. 

Within  the  third  class  are  embraced  the  most  important  cases  of 
quasi  contractual  obligation,  and  the  brief  discussion  which  follows 
will  be  confined  to  cases  within  that  class. 


MONEY  PAID  FOR  THE  USE  OE  ANOTHER. 

280.  Wherever  one  person  requests  or  alloxes  another  to  assume  sncli 
a  position  tliat  tlie  latter  may  be  compelled  by  laAV  to  discbarge 
the  former's  legal  liabilities,  the  law  imports  a  reqnest  and 
promise  by  the  former  to  the  latter, — a  request  to  make  the 
payment,  and  a  promise  to  repay, — and  the  obligation  thus 
created  may  be  enforced  by  assumpsit. 

It  is  a  rule  of  law  that  no  man  "can  make  himself  the  creditor  of 
another  by  paying  that  other's  debt  against  his  will  or  without  his 
consent,"  ^^  or  at  least  without  som.e  act  on  his  part  which  will  prevent 
him  from  withholding  consent.  Assumpsit  will  not  lie,  therefore,  for 
money  officiously  paid  by  the  plaintifif  for  the  defendant's  use.  The 
defendant  must  have  requested  such  payment,  or  he  must,  by  his  con- 

14  2  Harv.  L.  R.  64;    Keener,  Quasi  Cont.  c.  1. 
1 B  Ante,  p.  49. 

16  Keener,  Quasi  Cont.  16;  State  of  Louisiana  v.  Mayor,  etc.,  of  City  of 
New  Orleans,  109  U.  S.  285,  3  Sup.  Ct.  211,  27  L.  Ed.  936;  O'BRIEN  v. 
lOUNG,  95  N.  Y.  428,  47  Am.  Rep.  64;  Rae  v.  Hulbert,  17  111.  572;  Morse  v. 
Tappan,  3  Gray  (Mass.)  411;  Gutta-Percha  &  R.  Manufg  Co.  v.  City  of 
Houston,  108  N.  Y.  276.  15  N.  E.  402,  2  Am.  St.  Rep.  412.  Illustrations  of 
such  an  obligation  arise  where  a  statute  imposes  a  duty  upon  one  county 
or  parish  to  pay  another  for  money  expended  in  the  support  of  a  pauper; 
or  under  any  other  circumstances  declares  that  one  person  may  recover  from 
anotlier  money  paid  out  by  him  for  the  benefit  of  the  latter;  or  where  a 
statute  allows  an  action  to  recover  usuiy  paid,  or  money  lost  and  paid  on  a 
waj?er. 

17  See  Keener,  Quasi  Cont  17,  18. 

18  2  Harv.  L.  R.  64. 

15  Johnson  v.  Packet  Co.,  L.  R.  3  C.  P.  43;  Durnford  v.  Messiter.  5  Maule 
&  S.  440;  Hearn  v.  Cullen,  54  Md.  533;  Turner  v.  Egerton,  1  Gill  &  J.  (Md.> 
430;   ante,  p.  510. 


534  QUASI   CONTRACT.  (Ch.  13 

duct,  have  made  it  necessary  for  the  plaintiff  to  pay.  Where  a  person 
expressly  requests  another  to  pay  money  for  him  under  such  circum- 
stances as  to  import  a  promise  to  repay,  and  the  money  is  paid  in  ac- 
cordance with  the  request,  the  transaction  involves  an  actual  agree- 
ment. Where  no  request  in  fact  exists,  and  there  is  no  agreement  in 
fact  respecting  the  payment,  the  law  may  imply  a  fictitious  request.  As 
a  rule,  wherever  one  person  requests  or  allows  another  to  assume  such 
a  position  that  the  latter  may  be  compelled  by  law  to  discharge  the 
former's  legal  liabilities,  the  law  imports  a  request  and  promise  by  the 
former  to  the  latter, — a  request  to  make  the  payment,  and  a  promise 
to  repay.  It  will  not  do  to  say  that  there  was  no  agreement  in  fact, 
for  the  law  creates  the  promise.^" 

A  good  illustration  of  such  an  obligation  is  where  one  of  several 
sureties,  or  other  joint  debtors,  pays  the  whole  debt.  In  such  a  case 
he  is  allowed  to  recover  from  each  of  the  others  his  proportionate 
share.  A  request  to  pay  and  a  promise  to  repay  are  feigned  in  order 
to  entitle  him  to  the  remedy  of  assumpsit.^^     So,  where  an  executor 

20  Anson,  Cont.  (8th  Ed.)  3G3 ;  EXALL  v.  PARTRIDGE,  8  Term  R.  308; 
Sapsford  v.  Fletcher,  4  Term  R.  511;  Tuttle  v.  Armstead,  53  Conn,  175,  22 
Atl.  G77;  Grissell  v.  Robinson,  3  Bing.  N.  C,  10;  Wells  v.  Porter,  7  Wend. 
(N.  Y.)  119;  Houser  v.  McGinnas,  108  N.  C.  G31,  13  S.  E.  139;  Hawley  v. 
Beverley,  6  Man.  &  G.  221;  JOHNSON  v.  PACKET  CO.,  L.  R.  3  C.  P.  38; 
HALES  V.  FREEMAN,  1  Brod.  &  B.  391;  Hutzler  v.  Lord,  &i  Md.  534,  3 
Atl.  891;  Turner  v.  Egerton,  1  Gill  &  J.  (Md.)  430;  City  of  Baltimore  v. 
Hughes,  Id.  480,  19  Am.  Dec.  243;  Iron  City  Tool-Works  v.  Long  (Pa.)  7 
Atl.  82;  Beard  v.  Horton,  86  Ala.  202,  5  South.  207;  Perin  v.  Parker,  25  111. 
App.  465. 

21  KEMP  V.  J'ENDER,  12  Mees.  &  W.  421;  Holmes  v.  Williamson,  6  Maule 
&  S.  158;  DAVIES  v.  HUMPHREYS,  6  Mees.  &  W.  153;  DEERING  v. 
WINCHELSEA,  2  Bos.  &  P.  270;  Norton  v.  Coons,  6  N.  Y.  33;  Doremus  v. 
Selden,  19  Johns.  (N.  Y.)  213;  Tobias  v.  Rogers,  13  N.  Y.  59;  Johnson  v. 
Harv-ey,  84  N.  Y.  363,  38  Am.  Rep.  515;  Aldrich  v.  Aldrich,  56  Vt.  324,  48 
Am.  Rep.  791;  Jackson  v.  Murray,  77  Tex.  644,  14  S.  W.  235;  Nickerson  v. 
Wheeler,  118  Mass.  295 ;  Wilton  v.  Tazwell,  86  111.  29 ;  Yates  v.  Donaldson,  5 
Md.  389,  61  Am.  Dec.  283;  Sears  v.  Starbird,  78  Cal.  225,  20  Pac.  547;  Fletcher 
V.  Grover,  11  N.  H.  368,  35  Am.  Dec.  497;  Foster  v.  Burton,  62  Vt.  239,  20 
Atl.  326 ;  Logan  v.  Trayser,  77  Wis.  579,  46  N.  W.  877 ;  Bushnell  v.  Bushnell, 
77  Wis.  435,  46  N.  W.  442,  9  L.  R.  A.  411.  In  some  jurisdictions,  contribu- 
tion between  co-sureties  must  be  enforced  in  equity.  Longley  v.  Griggs, 
10  Pick.  (Mass.)  121 ;  McDonald  v.  Magi-uder,  3  Pet.  470,  7  L.  Ed.  744.  And, 
where  a  surety  has  been  compelled  to  pay  the  debt,  he  may,  on  the  same 
principle,  where  there  is  no  express  contract  with  the  principal  (TOUISSAINT 
V.  MARTINNANT,  2  Term  R.  100),  recover  the  amount  from  his  principal,  as 
for  money  paid  to  his  use.  Alexander  v.  Vane,  1  Mees.  &  W.  511 ;  Pownal 
V.  Ferrand,  0  Barn.  &  C.  439;  Crisfield  v.  State,  55  Md.  192.  As  a  rule,  no 
right  of  contribution  exists  between  joint  wrongdoers.  MERRYWEATHER 
v.  NIXAJSf,  8  Term  R.  186;  Boyer  v.  Bolender,  129  Pa.  324,  18  Atl.  127,  15 
Am.  St.  Rep.  723.  But  the  rule  does  not  apply  where  one  of  them  is  inno- 
cent of  any  intentional  or  actual  wrong,  and  has  been  compelled  to  pay 
damages  which  the  other,  who  was  the  actual  wrongdoer,  should  have  paid. 


§  280)  MONEY   PAID   FOR   THE    USE    OF   ANOTHER.  535 

was  compelled  to  pay  a  legacy  duty  for  which  the  legatee  was  ultimately 
liable,  he  was  allowed  to  recover  the  amount  from  the  legatee  as  mon- 
ey paid  for  his  use.^^ 

Another  class  of  cases  falling  under  this  head  are  cases  in  which  a 
person  is  compelled  by  the  wrong  or  fraud  of  another  to  pay  money 
to  a  third  person.  He  may  recover  the  amount  from  the  person  so 
guilty  of  the  wrong  or  fraud. ^'  Where,  for  instance,  a  member  of  a 
firm  gives  a  promissory  note,  signed  in  the  partnership  name,  for  a 
debt  of  his  own,  and  his  partner  is  compelled  to  pay  it,  the  latter  may 
recover  from  the  former  as  for  money  paid  to  his  use;**  and  where 
a  carrier,  by  mistake,  delivers  goods  to  the  wrong  person,  and  he 
wrongfully  detains  them,  so  that  tlie  carrier  is  compelled  to  pay  their 
value,  he  is  liable  to  the  carrier  for  the  ranount  so  paid.^'^ 

It  must  be  remembered,  as  already  stated,  that  it  is  not  every 
payment  on  another's  account  that  will  make  the  latter  liable.  No 
implied  promise  to  repay  is  raised  where  a  person  makes  a  payment 
voluntarily,  and  without  any  legal  liability  or  compulsion,  in  discharge 
of  the  debt  or  liability  of  another;  ^^  nor  where  he  has  been  com- 
pelled to  make  the  payment  by  his  own  wrongful  act;^^  nor  where 
the  payment  is  made  in  discharge  of  a  liability  which  is  a  mere  moral 
liability,  and  is  not  recognized  in  law ;  *^  nor  where  a  payment  is  made 
in  discharge  of  another's  liability  by  express  agreement  with  the  lat- 
ter.^® It  has  further  been  held  that,  to  entitle  a  person  to  recover 
from  another  money  paid  for  the  latter's  use,  there  must  be  some  privity 
between  them.     Legal  liability  incurred  by  one  person  on  behalf  of  an- 

In  such  a  case,  on  eqiiitable  principleg.  contribution  may  be  enforced. 
CHURCHILL  V.  HOLT,  127  Mass.  1G5.  34  Am.  Rep.  355;  Farweli  v.  Beclier, 
129  111.  261,  21  N.  E.  792,  6  L.  R.  A.  400,  IG  Am.  St.  Rep.  267;  Village  of 
Port  Jervis  v.  Bank,  96  N.  Y.  o-oO;    BAILEY  v.  BUSSING,  28  Conn.  455. 

2  2  Foster  v.  Ley,  2  Bing.  N.  C.  269;  Bate  v.  Payne,  13  Q.  B.  900;  HALES 
V.  FREEMAN.  1  Brod.  &  B.  391. 

2  3  BLEADEN  v.  CHARLES,  7  Bing.  246;  SMITH  v.  CUFF,  6  Maule  &  S. 
160;   Horton  v.  Riely.  11  Mees.  &  W.  492;  Van  Santen  v.  Oil  Co.,  81  N.  Y.  171. 

2*  Cross  V.  Cliesbire,  7  Excb.  43. 

2  5  BROWN  V.  HODGSON,  4  Taunt.  188.  And  see  Long  Champs  v.  Kenny, 
1  Doug.  137. 

2  6  Bates  V.  Townley,  2  Excb.  152;  Sleigb  v.  Sleigh,  5  Excb.  514.  Payment 
of  money  by  a  person  to  procure  the  release  of  bis  property  from  seizure 
for  another's  debt  does  not  impose  any  liability  on  the  latter  if  the  seizure 
was  unlawful,  or,  rather,  unless  it  is  shown  that  it  was  lawful.  Myers  v. 
Smith,  27  Md.  91. 

2T  Pitcher  v.  Bailey,  8  East,  171.  Where  an  officer,  for  instance,  having 
custody  of  a  prisoner  for  debt,  suffered  him  to  go  at  large,  and,  in  conse- 
quence, was  compelled  to  pay  the  creditor  himself,  it  was  held  that  he 
could  not  recover  the  amount  from  the  debtor.     Pitcher  v.  Bailey,  supra. 

2s  ATKINS  r.  BAN  WELL,  2  East.  505. 

2  0  Action  must  be  brought  on  the  express  agreement.  SPENCER  v.  PAR- 
RY, 3  Adol.  &  E.  331;   Lubbock  v.  Tribe,  3  Mees.  &  W.  607. 


536  QUASI  CONTRACT.  (Ch.  13 

other,  without  any  concurrence  or  privity  on  the  part  of  the  latter, 
will  not  entitle  him  to  recover  for  money  which,  under  such  circum- 
stances, he  may  pay  to  the  latter's  use.  The  liability  must  have  been 
in  some  way  cast  upon  him  by  the  latter.  The  mere  fact  that  he  has 
paid,  under  compulsion  of  law,  what  the  latter  might  have  been  com- 
pelled to  pay,  will  give  him  no  right  of  action  against  the  latter.  In 
an  English  case,  the  plaintiff,  being  entitled  under  a  bill  of  sale  to 
seize  the  defendant's  goods,  did  so,  but  left  the  goods  on  the  defend- 
ant's premises  until  rent  fell  due  to  the  defendant's  landlord.  The 
landlord  distrained  the  goods,  whereupon  the  plaintiff  paid  the  rent, 
and  sued  the  defendant  for  the  amount,  as  having  been  paid  to  his 
use.  It  was  held  that  the  facts  gave  the  plaintiff  no  right  of  action. 
"Having  seized  the  goods  under  the  bill  of  sale,"  it  was  said,  "they 
were  his  absolute  property.  He  had  a  right  to  take  them  away;  in- 
deed, it  was  his  duty  to  take  them  away.  He  probably  left  them  on 
the  premises  for  his  own  purposes.  *  *  *  ^t  all  events,  they 
were  not  left  there  at  the  request,  or  for  the  benefit,  of  the  defend- 
ant." «° 

In  all  cases,  to  entitle  the  plaintiff  to  recover  there  must  have  been 
a  payment,  not  necessarily  of  money,  but  of  property  at  least,  accepted 
as  payment  and  in  extinguishment  of  the  claim.  The  giving  of  a 
bond  or  note,  for  instance,  is  not  sufficient,  for  "the  mere  extinguish- 
ment of  the  original  liability  by  way  of  new  security  will  not  avail."  *^ 
It  is  otherwise,  however,  if  land  or  other  property  is  transferred  abso- 
lutely as  payment,  and  in  extinguishment  of  the  claim.^* 

MONEY  RECEIVED  FOR  THE  USE  OF  ANOTHER. 

281.  Wherever  one  person  has  money  to  ivliicli,  in  equity  and  good 
conscience,  another  is  entitled,  the  law  creates  a  promise  by 
the  former  to  pay  it  to  the  latter,  and  the  obligation  may  be 
enforced  by  assumpsit. 

Contracts  arising  from  agreement  frequently  result  in  the  receipt 
and  holding  of  money  by  one  of  the  parties  for  the  use  of  the  other; 
as,  where  a  person  is  employed  by  another  as  agent  to  receive  money, 
and  to  account  for  and  pay  over  the  amount  received,  and  receives 
money  by  virtue  of  his  employment.     In  such  a  case  his  obligation 

80  ENGLAND  v.  MABSDEN,  L.  R.  1  C.  P.  529.  And  see  Bay  City  Bank 
V.  Lindsay,  94  Mich.  176,  54  N.  W.  42.  But  see  EDMUNDS  v.  WALLING- 
FORD,  14  Q.  B.  Div.  811;    Keener,  Quasi  Cont.  390. 

81  Ainslie  v.  Wilson,  7  Cow.  (N.  Y.)  662,  17  Am.  Dec.  532;  Taylor  v.  Higgins, 
3  East,  170;   Gumming  v.  Hackley,  8  Johns.  (N.  Y.)  202. 

8  2  Ainslie  v.  Wilson,  7  Cow.  (N.  Y.)  662,  17  Am.  Dec.  532;  Randall  v.  Rich, 
11  Mass.  494. 


§  281)  MONEY    RECEIVED   FOR   TUE    USE    OF   ANOTHER.  537 

results  from  agreement. ^^  In  some  cases  a  similar  obligation  is  cre- 
ated by  law.  The  receipt  by  one  person  of  money  to  which  another 
person  is  entitled,  under  some  circumstances,  creates  a  debt  without 
agreement,  and  even  against  dissent.  The  law  creates  the  debt  and 
a  promise  to  pay  it.  The  debt  is  technically  described  as  a  debt  "for 
money  received  by  the  defendant  for  the  use  of  the  plaintiff,"  or  "for 
money  had  and  received."  It  has  been  said  that  such  an  action  will 
lie  whenever  the  defendant  has  money  to  which,  in  equity  and  good 
conscience,  the  plaintiff  is  entitled;^*  that  the  action  is  equitable  in 
its  nature,  and  will  lie,  generally,  wherever  a  bill  in  equity  would  lie.^'* 
The  obligation  thus  created  from  the  receipt  of  money  can  arise 
only  in  respect  of  money  or  what  is  equivalent  to  money. ^'  Goods  re- 
ceived by  the  defendant,  for  instance,  cannot  be  treated  as  money,  so 
as  to  support  such  an  action,  so  long  as  they  are  undisposed  of  and  re- 
main in  the  defendant's  hands ; '''  but  it  is  otherwise  where  they  have 
been  sold  and  converted  into  money  by  him.^^     In  such  a  case  the 

88  Ante,  p.  508. 

34  Lawson  v.  Lawson,  16  Grat.  (Va.)  230,  80  Am.  Dec.  702 ;  Barnett  v.  War- 
ren. 82  Ala.  557,  2  South.  457 ;  INIerchants'  Bank  v.  Rawls,  7  Ga.  191,  50  Am. 
Dec.  394;  Glascock  v.  Lyons,  20  Ind.  1,  83  Am.  Dec.  299;  O'Fallon  v.  Bois- 
menu,  3  Mo.  405,  2G  Am.  Dec.  678;  Boyett  v.  Potter,  80  Ala.  476,  2  South. 
534;  Vrooman  v.  McKaig,  4  Md.  450,  59  Am.  Dec.  85;  Teegarden  v.  Lewis 
(Ind.  Sup.)  35  N.  E.  24;  O'Conley  v.  City  of  Natchez,  1  Smedes  &  M.  (Miss.) 
31,  40  Am.  Dec.  87;  Jackson  v.  Hough,  38  W.  Va.  236,  18  S.  E.  575.  Money 
paid  on  judgment  before  or  pending  appeal  may  be  recovered  after  the  judg- 
ment is  reversed.  Chapman  v.  Sutton,  68  Wis.  G.j7.  32  N.  W.  6S;3;  CLARK  v. 
PINNEY,  6  Cow.  (N.  Y.)  297;  Kalmbach  v.  Foote,  79  Mich.  236,  44  N.  W. 
603 ;  Haebler  v.  Myers,  132  N.  Y.  363,  30  N.  E.  963,  15  L.  R.  A.  588,  28  Am. 
St.  Rep.  589 ;    SCHOLEY  v.  HALSEY,  72  N.  Y.  578.     See,  also,  Isom  v.  Johns, 

2  Munf.  (Va.)  272. 

3  5  CULBREATH  v.  CULBREATH,  7  Ga.  64.  50  Am.  Dec.  375;  McCrea  v. 
Purmort,  16  Wend.  (N.  Y.)  460,  30  Am.  Dec.  103 ;    Kennedy  v.  Insurance  Co., 

3  Har.  &  J.  (Md.)  367,  6  Am.  Dee.  499. 

8  6  Leake,  Cont.  67;  Keener,  Quasi  Cont.  139,  170;  Foster  v.  Dupre.  5  INIart. 
(La.)  6,  12  Am.  Dec.  466 ;  Brundage  v.  Village  of  Port  Chester,  102  N.  Y.  494,  7 
N.  B.  398 ;  Lee  v.  Merritt,  8  Q.  B.  820 ;  Nightingale  v.  Devisme.  5  Burrows, 
2589 ;  Scott  v.  INIiller,  3  Bing.  N.  C.  811 ;  Atkins  v.  Owen,  4  Adol.  &  E.  819 ;  Balch 
V.  Patten,  45  Me.  41,  71  Am.  Dec.  526;  Libby  v.  Robinson.  79  Me.  168,  9  Atl.  24. 

3T  Thurston  v.  Mills,  16  East,  254;  Heudricks  v.  Goodrich.  15  Wis.  079; 
Moses  V.  Arnold,  43  Iowa,  187,  22  Am.  Rep.  239;  Stearns  v.  Dillingham,  22 
Vt.  624,  54  Am.  Dec.  88;  Smith  v.  Jernigan,  S3  Ala.  2-56.  3  South.  515;  Tuttle 
V.  Campbell,  74  Mich.  652,  42  N.  W.  384,  16  Am.  St.  Rep.  652;  ISIoody  v. 
Walker,  89  Ala.  619,  7  South.  246. 

38  Leake,  Cont.  50;  Keener,  Quasi  Cont.  170;  Lamine  v.  Dorrell,  2  Ld. 
Raym.  1216;  Gilmore  v.  Wilbur,  12  Pick.  (Mass.)  120,  22  Am.  Dec.  410;  Parker 
v.  Crole,  5  Bing.  03;  OUGHTON  v.  SEPPINGS,  1  Barn.  &  Adol.  241;  Staat  v. 
Evans,  35  111.  455;  Notley  v.  Buck,  8  Barn.  &  C.  160;  Olive  v.  Olive,  95  N.  C. 
485;  POWELL  v.  REES,  7  Adol.  &  E.  426;  Comstock  v.  Hier,  73  N.  Y.  269, 
29  Am.  Rep.  142 ;  Barnett  v.  Warren,  82  Ala.  557,  2  South.  457 ;  Thornton  v. 
Strauss,  79  Ala.  104. 


538  QUASI  CONTRACT.  (Ch.  13 

right  to  recover  is  based  on  the  receipt  by  the  defendant  of  money 
belonging  to  the  plaintiff,  and  the  amount  of  money  received,  and  not 
the  value  of  the  goods,  is  the  measure  of  recovery.  It  follows  from 
this  that  if  the  money,  or  an  equivalent,  is  not  received  for  the  goods, 
even  though  they  may  have  been  sold;  ^^  or  if  they  have  been  merely 
exchanged  for  other  goods ;  *°  or  if  the  amount  cannot  be  ascer- 
tained,*^— the  action  will  not  lie.  The  plaintiff  must  seek  some  other 
remedy. 

It  has  been  said  that  an  action  for  money  had  and  received  will  not 
lie  unless  there  is  some  privity  between  the  plaintiff  and  the  defend- 
ant; *^  but  there  need  be  no  privity  other  than  such  as  arises  out  of 
the  fact  that  the  defendant  has  received  the  plaintiff's  money,  which 
in  equity  and  good  conscience  he  ought  not  to  retain.*' 

Same — Debts  Arising  from  Tort — Waiver  of  Tort. 

A  frequent  illustration  of  a  quasi  contractual  obligation  of  this  kind 
arises  where  a  person  obtains  another's  money  by  wrongful  or  fraudu- 
lent means.  Where  one  person  has  wrongfully  taken  another's  money, 
or  has  taken  his  property  and  converted  it  into  money,  the  latter  has 
a  right  of  action  ex  delicto  for  the  wrong  done  to  him,  as  by  an  action 
of  trespass  or  trover,  or  by  an  action  on  the  case  for  the  fraud.  He 
is  not  always  restricted,  however,  to  an  action  ex  delicto  for  the  specific 
wrong,  but  may  in  general  waive  the  tort,**  and  sue  in  assumpsit  for 
the  money  as  for  money  received  for  his  use.*^ 

3  9  Budd  y.  Hiler,  27  N.  J.  Law,  43;  Rosenbfirg  v.  Block.  54  N.  Y.  Super. 
Ot.  537.  Receipt  of  equivalent  Miller  v.  Miller,  7  Pick.  (Mass.)  133,  19  Am. 
Dec.  264;  Aiuslie  v.  Wilson,  7  Cow.  (N.  Y.)  GG2,  17  Am.  Dec.  532;  Doon  v. 
Ravey,  49  Vt.  293. 

4  0  Fuller  v.  Duren,  36  Ala.  73,  76  Am.  Dec.  318;  Kidney  v.  Persons,  41  Vt 
380,  98  Am.  Dec.  595. 

41  Saville,  Somes  &  Co.  v.  Welch,  58  Vt  683,  5  Atl.  491;  Glasscock  v. 
Hazell,  109  N.  C.  14,5,  13  S.  E.  7S9. 

4  2  Sergeant  v.  Stryker,  16  N.  J.  Law,  464,  32  Am.  Dec.  404. 

43  Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786 ;  Pugh  v.  Powell  (Pa.) 
11  Atl.  570 ;    Drake  v.  Whaley,  35  S.  C.  187,  14  S.  E.  397. 

4  4  This  expression  is  generally  used.  As  pointed  out  by  Prof.  Keener,  the 
doctrine  of  waiver  of  tort  and  suit  in  assumpsit  is  simply  a  question  of  the 
election  of  remedies.  "The  remedies  in  tort  and  assumpsit  not  being  con- 
current, a  plaintiff  is  compelled  to  elect  which  remedy  he  will  pursue;    and, 

4o  NEATE  V.  HARDING,  6  P^xch.  349;  Cory  v.  Freeholders,  47  N.  J.  Law, 
181;  Burton  v.  Driggs,  20  Wall.  125,  22  L.  Ed.  299;  Loomis  v.  O'Neal,  73 
Mich.  582,  41  N.  W.  701;  People  v.  Wood,  121  N.  Y.  522,  24  N.  E.  952;  Kidney 
V.  Persons,  41  Vt  386,  98  Am.  Dec.  595;  Lubert  v.  Chauviteau,  3  Cal.  458, 
58  Am.  Dec.  415;  Kiewert  v.  Rindskopf,  46  Wis.  481,  1  N.  W.  163.  32  Am. 
Rep.  731 ;  Western  A.ssur.  Co.  r.  Towle,  65  Wia  247.  26  N.  W.  104;  Gilmore  v. 
Wilbur,  12  Pick.  (Mass.)  120,  22  Am.  Dec.  410;  Dashaway  Ass'n  v.  Rogers, 
79  Cal.  211,  21  Pac.  742;  O'Conley  v.  City  of  Natchez,  1  Smedes  &  M.  (Miss.) 
31,  40  Am.  Dec.  87. 


§  281)  MONEY   RECEIVED   FOR  THE   USE   OP  ANOTHER.  539 

The  fundamental  fact  upon  which  this  right  of  action  depends  is 
that  the  defendant  has  received  money  belonging  to  the  plaintiff,  or  to 
which  the  plaintiff  is  entitled.  It  is  not  sufficient  to  show  that  the 
defendant  has  by  fraud  or  wrong  caused  the  plaintiff  to  pay  money  to 
others  than  the  defendant,  or  to  otherwise  sustain  loss  or  damage.*" 
"Assuming  a  defendant  to  be  a  tort  feasor,  in  order  that  the  doctrine 
of  waiver  of  tort  may  apply,  the  defendant  must  have  unjustly  en- 
riched himself  thereby.  That  the  plaintiff  has  been  impoverished  by 
the  tort  is  not  sufficient.  If  the  plaintiff's  claim,  then,  is  in  reality  to 
recover  damages  for  an  injurv  done,  his  sole  remedy  is  to  sue  in 
tort."  *^ 

It  is  impossible  for  us  to  go  at  much  length  into  the  different  cir- 
cumstances under  which  the  law  will  create  this  obligation.  It  must 
suffice  to  mention  the  most  important. 

Where  a  person  steals  another's  money  or  property,  or  obtains  it  by 
false  pretenses,  the  fact  that  a  crime  has  been  committed  will  not  pre- 
vent a  civil  action  by  the  person  injured.  He  may  sue  the  thief  in 
tort,  or  he  may  elect  to  sue  in  assumpsit  as  for  money  received  for  his 
use.*^ 

The  same  is  true  in  any  case  in  which  one  person,  by  means  of  tres- 
pass, fraud,  or  other  tortious  means,  obtains  another's  money.** 

if  he  elect  to  sue  ia  assumpsit,  he  is  said  to  waive  the  tort."  Keener,  Quasi 
Cont.  159 ;  COOPER  v.  COOPER,  147  Mass.  370,  17  N.  E.  S92,  9  Am.  St.  Rep. 
721.  If  the  plaintiff  waives  the  wrongful  character  of  the  taking,  or  makes 
his  election,  by  recovering  the  money  as  a  debt,  or  otherwise,  he  thereby  pre- 
cludes himself  from  taking  advantage  of  it  as  a  tort.  Brewer  v.  Sparrow,  7 
Barn.  &  C.  310;  Lithgoe  v.  Vernon,  5  Hm-1.  &  N.  180;  THOMPSON  v. 
HOWARD,  31  Mich.  309;  Huffman  v.  Hughlett,  11  Lea  (Teun.)  549.  He 
cannot  accept  the  proceeds  of  his  goods  which  have  been  wi'ongfully  taken 
and  sold,  as  a  debt,  and  likewise  claim  damages  for  the  injury  done  in  the 
wrongful  taking  and  sale.  Brewer  v.  Sparrow,  7  Barn.  &  C.  310.  Moreover, 
he  cannot  Avaive  the  wrong,  or  make  his  election  in  part  only.  Therefore,  if 
he  accepts  part  of  the  proceeds  or  price  of  the  goods,  he  is  bound  to  treat  the 
balance  as  a  debt.  Lythgoe  v.  Vernon,  5  Hurl.  &  N.  180.  A  mere  claim  to  a 
debt  in  respect  of  the  value  of  goods  wrongfully  obtained,  if  not  acquiesced 
in  by  the  other  party,  does  not  constitute  an  election  so  as  to  waive  the  tort. 
Valpy  V.  Sanders,  5  C.  B.  88G. 

46  NATIONAL  TRUST  CO.  v.  GLEASON,  77  N.  Y.  400,  33  Am.  Rep.  G32. 

4T  Keener,  Quasi  Cont.  160,  citing,  among  other  cases,  Patterson  v.  Prior, 
18  Ind.  440,  81  Am.  Dec.  367;  NATIONAL  TRUST  CO.  v.  GLEASON.  77 
N.  Y.  400,  33  Am.  Rep.  632;  New  York  Guaranty  &  Indemnity  Co.  v.  Gleason, 
78  N.  Y.  503 ;  Tightmeyer  v.  Mougold,  20  Kan.  90 ;  Fanson  v.  Linsley,  Id.  235. 
And  see  Stockett  v.  Vi\atkins'  Adm'rs,  2  Gill  &  J.  (Md.)  320,  20  Am.  Dec.  438. 

4s  Holt  V.  Ely,  1  El.  &  Bl.  795;  Chowue  v.  Baylis,  31  Law  J.  Ch.  757;  Stone 
V.  Marsh,  6  Barn.  &  C.  551;  Hindmarch  v.  Hoffman,  127  Pa.  284,  18  Atl.  14, 
4  L.  R.  A.  3G8,  14  Am.  St.  Rep.  842;    Litt  v.  Martiudale,  18  C.  B.  314. 

4  9  CATTS  V.  PHALEN,  2  How.  370,  11  L.  Ed.  306;  Western  Assur.  Co.  v. 
Towle,  65  Wis.  247,  26  N.  W.  104;  Kiewert  v.  Rindskopf,  46  Wis.  481, 
1  N.  W.  163,  32  Am.  Rep.  731;    MARSH  v.  KEATING,  1  Biug.  N.  C.  198; 


540  QUASI   CONTRACT.  (Cll.  IS 

Same — Money  Obtained  by  Fraud  or  Duress. 

Where  a  person  has  obtained  money  from  another  under  an  agree- 
ment which  the  latter  has  the  right  to  avoid  on  the  ground  of  fraud, 
duress,  or  undue  influence,  the  latter,  on  avoiding  the  contract,  may 
recover  the  amount  as  money  received  for  his  use.^" 

Money  obtained  by  means  of  duress  or  compulsion  may  in  like  man- 
ner be  recovered  in  assumpsit.''^  Duress  may  consist,  as  we  have  seen, 
in  violence  or  unlawful  imprisonment,^^  or  threats  of  violence  ^^  or 
unlawful  imprisonment,^*  in  which  cases  it  is  duress  of  the  person; 
or  it  may  be  duress  of  goods,  as  where  property  is  wrongfully  taken 
or  withheld  under  oppressive  circumstances. ^"^  Further  than  this, 
"where  money  has  been  obtained  *  *  *  by  any  kind  of  compul- 
sion or  oppression  sufficient  to  render  the  payment  involuntary,"  it 
may  be  recovered  as  a  debt  for  money  received  for  the  use  of  the 
plaintifif.°« 

Cory  V.  Freeholders,  47  N,  J.  Law,  181;    Burton  v.  Driggs,  20  Wall.  125,  22 
Im  Ed.  299. 

00  Thornett  v.  Haines,  15  Mees.  &  W.  367;  Street  v.  Blay,  2  Barn.  &  Adol. 
456;  Dashaway  Ass'n  v.  Rogers,  79  Cal.  211,  21  Pac.  742;  Gompertz  v. 
Denton,  1  Oromp.  &  M.  207;    I'oster  v.  Bartlett,  62  N.  H.  617;   ante,  p.  235. 

01  Shaw  V.  Woodcock,  7  Barn.  &  0.  73;  Atlee  v.  Backhouse,  3  Mees.  &  W. 
633 ;  CHANDLER  v.  SANGER,  114  Mass.  364,  19  Am.  Rep.  367 ;  PRESTON 
V.  CITY  OP  BOSTON,  12  Pick.  (Mass.)  7.  On  this  subject  generally,  see  ante, 
p.  240,  and  cases  there  collected. 

82  De  Mesnil  v.  Dakin,  L.  R.  3  Q  B.  18.  As  we  have  seen  in  another  con- 
nection, even  a  legal  arrest  and  imprisonment  may  be  duress  if  there  is  abuse 
of  process.     Ante,  p.  242 ;  Heckman  v.  Swartz,  64  Wis.  48,  24  N.  W.  473. 

58  Ante,  p.  241. 

54  Ante,  p.  242.  It  must  be  remembered  that  it  is  unlawful  to  compound  a 
felony,  and  that  money  paid  to  stifle  a  criminal  prosecution  cannot  be  recov- 
ered, ante,  p.  293;  Haynes  v.  Rudd,  102  N.  Y.  372,  7  N.  E.  287,  55  Am.  Rep. 
815;  Gotwalt  v.  Neal,  25  Md.  434;  Dixon  v.  Olmstead,  9  Vt.  310,  31  Am.  Dec. 
629;  unless  the  circumstances  were  such  that  the  parties  cannot  be  regarded 
as  being  in  pari  delicto,  DUVAL  v.  WELLMAN,  124  N.  Y.  156,  26  N.  E.  343; 
ante,  p.  840. 

56  Ante,  p.  243;  HILLS  v.  STREET,  5  Bing.  37;  ASTLEY  v.  REYNOLDS. 
2  Strange,  915;  CHANDLER  v.  SANGER,  114  Mass.  364,  19  Am.  Rep.  367; 
Cobb  V.  Charter,  32  Conn.  358,  87  Am.  Dec.  178;  PRESTON  v.  CITY  OF 
BOSTON,  12  Pick.  (Mass.)  7;  PARCHER  v.  MARATHON  CO.,  52  Wis.  388, 
9  N.  W.  23,  38  Am.  Rep.  745;  Robertson  v.  Frank  Br<»s.  Co.,  132  U.  S.  17,  10 
Sup.  Ct.  5,  33  L.  Ed.  236;  Briggs  v.  Boyd,  56  N.  Y.  289;  .Toannin  v.  Ogilvie, 
49  Minn.  564,  52  N.  W.  217,  16  L.  R.  A.  376,  32  Am.  St.  Rep.  581.  Recovery 
of  money  exacted  by  carrier.  Baldwin  v.  Steamship  Co.,  74  N.  Y.  125,  30 
Am.  Rep.  277;  Peters  v.  Railroad  Co.,  42  Ohio  St  275,  51  Am,  Rep.  814; 
McGregor  v.  Railway  Co.,  35  N.  J.  Law,  89. 

59  Leake,  Cont.  52,  and  authorities  there  collected;  CAREW  v.  RUTHER- 
FORD, 106  Mass.  1,  8  Am.  Rep.  287;  Bulow  v.  Goddard,  1  Nott  &  McC.  (S.  C.) 
45,  9  Am.  Dec.  663;  Westlake  &  Button  v.  City  of  St.  Louis,  77  Mo.  47,  40 
Am.  Rep.  4;  Lehigh  Coal  &  Nav.  Co.  v.  Brown,  100  Pa.  .'^38:  SWIFT  CO.  v. 
U.  S.,  Ill  U.  S.  22,  4  Sup.  Ct.  244,  28  L.  Ed.  341 ;   Regan  v.  Baldwin,  126  Mass. 


§  281)  MONEY    RECEIVED   FOR   THE    USE    OF   ANOTHER.  541 

Same — Voluntary  Payment. 

If  a  mere  claim  is  made  upon  a  person  without  any  legal  proceed- 
ing, and  he  pays  it  with  full  knowledge  of  all  the  circumstances  of 
the  claim,  and  without  any  compulsion  or  necessit}',  the  payment  is 
regarded  as  voluntary,  and  cannot  be  recovered  back,  though  the  claim 
was  unfounded,  and  might  have  been  successfully  resisted."^  It  seems 
that  it  was  at  one  time  held  that  money  voluntarily  paid  could  be  re- 
covered back  if  the  party  receiving  it  was  not  entitled  to  it;  ^^  but  it 
is  now  virtually  settled  "that  a  party  may  in  equity  and  good  conscience 
continue  to  hold  money  voluntarily  paid  to  him  under  no  mistake  of 
fact,  and  without  fraud  upon  his  part."  ^" 

Same — Liability  of  Third  Persons. 

If  money  wrongfully  obtained  has  passed  into  the  hands  of  a  third 
person,  the  law  will  create  a  similar  promise  by  him,  unless  he  was 
a  bona  fide  purchaser  or  recipient  for  value ;  that  is,  unless  he  gave  a 
valuable  consideration  for  the  money,  and  had  no  notice  of  the  fraud 
or  other  wrong  by  which  it  was  obtained.®**  If  he  was  a  bona  fide 
purchaser  or  recipient,  he  is  not  liable.*^  The  same  is  true  where 
goods  wrongfully  obtained  or  converted  have  passed  into  the  hands 
of  a  third  person,  and  been  converted  into  money.®* 

Same — Money  Received  without  Fraud  or  Wrong. 

The  right  to  recover  money  as  having  been  received  by  the  defend- 
ant for  the  use  of  the  plaintiff  is  not  limited  to  cases  in  which  the 
money  has  been  obtained  by  a  tortious  act,  but  extends  to  many  cases 
in  which  it  has  been   rightfully  obtained,   but  cannot  be   rightfully 

485,  30  Am.  Rep.  689.  Mere  threat  af  suit  is  not  compulsion  so  as  to  render 
a  payment  to  prevent  suit  involuntary.  Emmons  v.  Scudder,  115  Mass.  367; 
Await  V.  Association,  34  Md.  435. 

0  7  Lea'be,  Cont.  56;  Spragg  v.  Hammond,  2  Brod.  &  B.  59;  Denby  v.  Moore, 
1  Barn.  «&  Aid.  123;  Mon-is  v.  Tarin,  1  Dall.  147,  1  L.  Ed.  76,  1  Am.  Dec.  233; 
Hall  v.  Shultz,  4  Johns.  (N.  Y.)  240,  4  Am.  Dec.  270;  Await  v.  Association,  34 
Md.  435. 

68  MOSES  V.  MACFERDAN,  1  W.  Bl.  219. 

68  BRISBANE  V.  DACRES,  5  Taunt.  144;  Regan  v.  Baldwin,  126  Mass. 
485,  30  Am.  Rep.  689;   Benson  v.  Monroe,  7  Cush.  (Mass.)  125,  54  Am.  Dec.  716. 

60  Calland  v.  Loyd,  6  Mees.  &  W.  26;  Bayne  v.  U.  S.,  93  U.  S.  642,  23  L.  Ed. 
997 ;  Mason  v.  Prendergast,  120  N.  Y.  536,  24  N.  E.  806 ;  Atlantic  Cotton  Mills 
v.  Orchard  Mills,  147  Mass.  268,  17  N.  E.  496,  9  Am.  St  698 ;  Hindmarch  v. 
Hoffman,  127  Pa.  284,  18  Atl.  14,  4  L.  R.  A.  368,  14  Am.  St.  Rep.  &42;  Harrison 
Mach.  Works  v.  Coquillard,  26  111.  App.  513;  ante,  p.  234. 

«i  Foster  v.  Green,  7  Hiu-1.  &  N.  881.  And  see  Tliacher  v.  Pray,  113  Mass. 
291,  18  Am.  Rep.  480;  Newhall  v.  Wyatt,  139  N.  Y.  452,  34  N.  E.  1045,  36 
Am.  St  Rep.  712;  Stephens  v.  Board,  79  N.  Y.  187,  35  Am.  Rep.  511;  State 
Nat  Bank  v.  U.  S.,  114  U.  S.  401,  5  Sup.  Ct  888,  29  L.  Ed.  149. 

8  2  Glyn  V.  Baker,  13  Eiist.  509;  Graham  v.  Dyster,  6  Maule  &  S.  1;  Down 
V.  Hailing,  4  Barn.  &  C.  330. 


542  QUASI   CONTRACT.  (Cb.  IS 

kept.°^  Where  a  person,  for  instance,  has  obtained  money  from  an- 
other under  an  agreement  which  the  latter  is  entitled  to  avoid,  and 
does  avoid,  because  of  want  or  faihire  of  consideration,®*  or  because 
of  mistake,®"*  or  because  of  want  of  capacity  by  reason  of  infancy  or 
insanity,®*  or  because  of  the  other  party's  failure  to  perform  his  part 
of  the  agreement,®'^  the  money  may  be  recovered.  The  money,  though 
obtained  without  wrong,  cannot  be  rightfully  and  justly  Ayithheld  after 
the  contract  has  been  avoided,  and  the  law  therefore  creates  an  obli- 
gation to  repay  it. 

Same — Money  Paid  under  a  Mistake. 

An  important  class  of  cases  in  which  an  action  will  lie  as  for  money 
received  by  the  defendant  for  the  use  of  the  plaintiff  is  where  money 
is  paid  under  a  mistake  of  fact.  As  a  rule,  whenever  a  person  makes 
a  payment  to  another  under  such  a  mistake  as  to  material  facts  as  to 
create  a  belief  in  the  existence  of  a  liability  to  pay  which  does  not 
really  exist,  the  money  may  be  recovered  back  as  having  been  received 
by  the  person  to  whom  it  was  paid  for  the  use  of  the  person  paying 
it.®*  If  the  mistake  is  caused  by  the  fraud  of  the  person  receiving  the 
money,  or  if  he  knows  of  the  mistake  when  he  receives  the  money, 
the  case  will  fall  within  the  class  which  we  have  already  considered.®^ 
We  are  speaking  here  of  cases  in  which  the_  mistake  is  not  induced  by 
fraud,  and  in  which  both  parties  may  act  in  perfect  good  faith.  Such 
an  obligation  arises  where  money  is  paid  as  due  upon  the  basis  of  er- 
roneous accounts,  and  upon  a  true  statement  of  account  is  found  not 
to  have  been  due.  It  may  be  recovered  as  money  received  for  the 
plaintiff's  use.''"  The  money  must  have  been  paid  under  the  belief  that 
it  was  due.  If  the  plaintiff  knew  that  it  was  not  due,  and  voluntarily 
paid  it  because  he  thought  he  could  not  show  that  it  was  not  due,  or 

6  3  Johnson's  Ex'x  v.  Jennings'  Adm'r,  10  Grat  (Va.)  1,  60  Am.  Dec.  323. 
84  Post,    p.  544.  6  5  Post,  p.  542;  ante,  p.  196.  ee  Ante.  pp.  175,  184. 
67  Pbilipson  V.  Bates'  Ex'r,  2  Mo.  116,  22  Am.  Dee.  444;    post,  p.  514. 

«8  BIZE  V.  DICKASON,  1  Term  R.  285;  Citizens'  Bank  v.  Grafflin,  31  Md. 
507,  1  Am.  Rep.  66 ;  Barber  v.  Brown,  1  C.  B.  (N.  S.)  121 ;  MILNES  v.  DUNCAN, 
6  Bam.  &  C.  671;  Mills  v.  Guardians  of  the  Poor,  3  Exch.  590;  Mayer  v.  City 
of  New  York,  63  N.  Y.  455;  Rheel  v.  Hicks,  25  N.  Y.  289;  Hazard  v.  In- 
surance Co.,  7  R.  I.  429;  Holtz  v.  Schmidt,  59  N.  Y.  253;  Clark  v.  Sylvester 
(Me.)  13  Atl.  404;  McDonald  v.  Lynch,  59  Mo.  350;  Glenn  v.  Shannon,  12 
S.  C.  570. 

69  SHARKEY  V.  MANSFIELD,  90  N.  Y.  227.  43  Am.  Rep.  161.  This  dis- 
tinction, for  several  reasons,  may  become  important.  Where  there  is  na 
fraud,  for  instance,  a  demand  before  suit  is  necessary ;  but  where  there  is 
fraud  (and  it  amoamts  to  fraud  if  the  other  party  knew  of  the  mistake), 
demand  Is  not  necessary.  SHARKEY  v.  MANSFIELD,  supra;  Taylor  v. 
Spears,  6  Ark.  381,  44  Am.  Dec.  519. 

7  0  Dails  V.  Lloyd,  12  Q.  B.  .531;  TOWNSEND  v.  CROWDY,  8  C.  B.  (N.  S.) 
477;  STUART  v.  SEARS,  119  Mass.  143;  Keenholts  v.  Church,  57  Hun,  589, 
10  N-  Y.  Supp.  615. 


§  281)  MONET   RECEIVED   FOR  THE   USE   OF   ANOTHER.  543 

for  any  other  reason,  it  cannot  be  recovered  back.  This  is  not  ig- 
norance of  fact,  but  ignorance  of  the  means  of  proving  a  fact."'^  The 
mere  fact  that  the  party  paying  the  money  suspects  that  it  is  not  due 
does  not  bring  the  case  within  this  rule.  He  must  beheve  it  is  not 
due.'^*  It  is  essential  that  there  shall  have  been  a  mistake  of  a  ma- 
terial fact.  A  voluntary  payment  with  knowledge  of  all  facts  cannot 
be  recovered,  even  though  there  may  have  been  no  obligation  to  pay.''^ 
By  the  weight  of  authority,  if  the  mistake  occurs  and  causes  the  pay- 
ment, it  is  immaterial  that  it  arose  from  negligence  or  want  of  diligent 
inquiry  on  the  part  of  the  plaintiff,  or  from  forgetfulness,  or  the  fact 
that  he  had  the  means  of  knowledge;^*  provided,  however,  the  de- 
fendant has  not  so  changed  his  position  that  he  cannot  be  placed  in 
statu  quo.'^°  If  the  money  is  intentionally  paid  "without  reference  to 
the  truth  or  falsehood  of  the  fact,  the  plaintiff  meaning  to  waive  all 
inquiry  into  it,  and  that  the  person  receiving  shall  have  the  money  at 
all  events,  whether  the  fact  be  true  or  false,"  it  cannot  be  recovered. '^^ 
A  person  cannot  recover  money  paid  under  a  mistake  of  fact  if  he 
has  received  the  equivalent  for  which  he  bargained,  so  that  there  is  no 
failure  of  consideration  ;  and  it  is  immaterial  that  he  need  not.  and 
would  not,  have  made  the  payment  if  he  had  known  the  true  state  of 
facts.  Where  a  bank,  for  instance,  pays  the  check  of  a  depositor  un- 
der the  erroneous  belief  ths*^  it  has  sufficient  funds,  it  may  recover 
from  the  payee  the  excess  paid  him  over  the  amount  to  the  depositor's 

Ti  Keener,  Quasi  Cont.  26;  Windbiel  v.  Carroll,  16  Hun  (N.  Y.)  101. 

7  2  Keener,   Quasi  Cont.  28. 

T8  Adams  v.  Reeves,  68  N.  C.  134,  12  Am.  Rep.  627. 

T4  KELLY  V.  SOLARI.  9  Mees.  &  W.  54;  APPLETON  BANK  v.  McGILV- 
RAY,  4  Gray  (Mass.)  518.  64  Am.  Dec.  92;  Devine  v.  Edwards,  101  111.  138; 
Lawrence  v.  Bank,  54  N.  Y.  432;  Bell  v.  Gardiner,  4  Man.  &  G.  11;  TOWNS- 
END  V.  CROWDY,  8  C.  B.  (N.  S.)  477;    Waite  v.  Leggett,  8  Cow.  (N.  Y.)  195, 

18  Am.  Dec.  441;  KINGSTON  BANK  v.  ELTINGE,  40  N.  Y.  391,  100  Am. 
Dec.  516;  Brown  v.  Road  Co.,  56  Ind.  110;  Rutherford  v.  Mclvor.  21  Ala. 
750;  Baltimore  &  S.  R.  Co.  v.  Faunce,  6  Gill  (Md.)  68,  46  Am.  Dec.  655; 
Koontz  V.  BaMv,  51  :Nro.  275;  Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786. 
Contra,  Brummitt  v.  McGuire,  107  N.  C.  351,  12  S.  E.  191;  Wilson  v.  Barker, 
50  Me.  447. 

7  5  Keener,  Quasi  Cont.  71;   Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786. 

7  6  KELLY  Y.  SOLARI,  9  Mees.  &  W.  54;    McARTHUR  v.  LUCE,  43  Mich. 

435,  5  N.  W.  451,  38  Am.  Rep.  204;    Mowatt  v.  Wright,  1  Wend.  (N.  Y.)  355, 

19  Am.  Dec.  508;  Buffalo  v.  O'Malley,  61  Wis.  255,  20  N.  W.  913,  50  Am.  Rep. 
137;  Bergenthal  v.  Fiebrantz,  48  Wis.  435,  4  N.  W.  89;  Troy  v.  Bland,  58 
Ala.  197.  A  compromise,  therefore,  cannot  be  repudiated,  and  money  paid 
recovered,  on  the  ground  of  mistake,  where  it  was  made  without  reference 
to  the  truth  or  falsity  of  facts.  See  cases  above  cited.  But  it  is  otherwise  if 
there  was  mistake  as  to  a  fact  which  was  believed  to  be  true,  and  on  the 
belief  in  the  truth  of  which  the  compromise  was  made.  Rheel  v.  Hicks.  25 
N.  Y.  289;  WHEADON  v.  OLDS,  20  Wend.  (N.  Y.)  174;  STUART  v.  SEARS, 
119  Mass.  143. 


544  QUASI  CONTRACT.  (Ch.  13 

credit,  but  it  cannot  recover  the  full  amount  paid.  And  it  makes  no 
difference  that  because  of  the  overdraft  it  had  a  right  to  refuse  to  pay 
anything  on  the  check.''''' 

It  is  almost  universally  held  that  a  payment  under  a  mistake  of 
law  cannot  be  recovered,  for  no  man  can  plead  ignorance  of  the  law. 
If  a  person,  therefore,  voluntarily  pays  a  claim  made  upon  him  with 
full  knowledge  of  all  the  circumstances,  but  under  a  mistake  of  law,  he 
cannot  recover  the  money  paid  on  the  ground  that  he  was  not  legally 
liable,  and  could  have  successfully  resisted  the  claim  if  he  had  under- 
stood his  legal  rights. ''*  Mistake,  therefore,  of  a  fact,  the  truth  or 
falsity  of  which  is  immaterial,  does  not  entitle  one  to  recover  money 
paid.  "A  plaintiff  paying  a  claim,  supposing  himself  to  be  under  an 
obligation  to  pay  the  same  because  of  mistake  as  to  a  fact  which,  if  true, 
would  not  have  imposed  an  obligation  upon  him,  cannot  recover  the 
money  so  paid  in  jurisdictions  where  a  recovery  is  not  allowed  of  mon- 
ed  paid  under  mistake  of  law,  since,  had  the  plaintiff  known  the  law, 
the  fact  about  which  he  was  mistaken  would  not  have  induced  him  to 
make  the  payment."  ''*  We  have,  in  treating  of  the  formation  of  con- 
tract, shown  the  general  exceptions  to  the  rule  that  ignorance  of  law 
cannot  be  shown,  and  it  will  suffice  to  refer  to  what  is  there  said. 

Same — Want  or  Failure  of  Consideration — Failure  of  Other  Party  to 
Perform. 
We  may  class  with  payments  made  under  mistake  payments  which 
are  allowed  to  be  recovered  because  of  want  or  failure  of  consideration, 
for  in  all  cases  where  a  recovery  is  allowed  on  this  ground  there  has 
been  a  misapprehension.     The  party  who  has  paid  the  money  has  not 

7T  Keener,  Quasi  Ck)nt.  34,  where  the  question  is  considered  at  length.  And 
see  MERCHANTS'  NAT.  BANK  v.  BANK,  139  Mass.  513,  2  N.  E.  89;  Badeau 
V.  U.  S.,  130  U.  S.  439,  9  Sup.  Ct  579,  32  L.  Ed.  997;  Lemans  v.  Wiley,  92  Ind. 
436. 

7  8  BILBIE  V.  LUMLEY,  2  East,  469;  Vanderbeck  v.  City  of  Rochester,  122 
N.  Y.  285,  25  N.  E.  408;  CLARKE  v.  DUTGHER,  9  Cow.  (N.  Y.)  674;  Denby 
V.  Moore,  1  Barn.  &  Aid.  123;  BRISBANE  v.  DACRES,  5  Taunt.  143;  Wayne 
Co.  V.  Randall,  43  Mich.  137,  5  N.  W.  75 ;  Birkhauser  v.  Schmitt,  45  Wis.  316, 
30  Am.  Rep.  740;  Carson  v.  Cochran,  52  Minn.  67,  53  N.  W.  1130;  Valley  Ry. 
Co.  V.  Iron  Co.,  46  Ohio  St.  44,  18  N.  E.  486,  1  L.  R.  A.  412;  Beard  v.  Beard, 
25  W.  Va.  486,  52  Am.  Rep.  219 ;  Porter  v.  Jefiferies,  40  S.  C.  92,  18  S.  E.  229 ; 
Mutual  Sav.  Inst.  v.  Enslin,  46  Mo.  200;  Tri^g  v.  Read,  5  Humph.  (Tenn.) 
529,  42  Am.  Dec.  447;  Snelson  v.  State,  16  Ind.  29;  Hubbard  v.  Martin,  8 
Yerg.  (Tenn.)  498;  Real  Estate  Sav.  Inst.  v.  Linder,  74  Pa.  371;  Townsend 
V.  Cowles,  31  Ala.  428;  Newell  v.  March,  30  N.  C.  441;  Christy  v.  Sullivan.  50 
Cal.  337;  Osburn  v.  Throckmorton,  90  Va.  311,  18  S.  E.  285;  ante,  p.  206. 
Contra,  Mansfield  v.  Lynch,  59  Conn.  320,  22  Atl.  313,  12  L.  R.  A.  285 ;  ante, 
p.  206. 

7  8  Keener,  Quasi  Cont.  32;  citing  Needles  v.  Burk,  81  Mo.  569,  51  Am.  Rep. 
251;  Langevin  v.  City  of  St  Paul,  49  Mina  189,  51  N.  W.  817,  15  L.  R,  A. 
766;    ante,  p.  206. 


§  281)  MONET    RECEIVED    FOR   THE    USE    OF   ANOTHER.  545 

gotten  what  he  supposed,  or  had  a  right  to  suppose,  he  was  getting,  or 
would  get,  in  return  for  his  money.  Thus,  where  a  person  bought 
a  bar  of  silver  by  weight,  and,  by  an  error  in  assaying  it,  paid  for  a 
greater  weight  than  it  contained,  he  was  allowed  to  recover  the  ex- 
cess from  the  seller  as  money  received  for  his  use.^"  It  needs  no 
argument  to  show  that  this  is  a  case  of  mistake.  In  like  manner,  if 
the  purchaser  of  goods  has  paid  the  price,  and  the  seller  fails  to  de- 
liver the  goods,  the  purchaser  may  recover  the  money  paid  as  money 
received  for  his  use.®^  And  in  any  case  where  a  person  has  paid 
money  under  an  agreement  which  he  is  entitled  to  rescind,  and  does 
rescind,  for  want  or  failure  of  consideration,  he  may  recover  what 
he  has  paid.*^  The  action  will  lie,  for  instance,  against  a  person  who 
sells  goods  as  his  own,  but  which  are  not  his  own,  where  the  real 
owner  subsequently  claims  them  from  the  purchaser  ;^^  or  against  a 
person  who  sells  bills,  notes,  bonds,  stock,  or  other  securities,  which 
turn  out  to  be  forgeries,  or  for  some  other  reason  to  be  worthless ;  ®* 
or  against  a  person  who  contracts  to  transfer  the  title  to  land,  where 
because  of  his  want  of  title,  or  for  other  reasons,  no  title  passes.®^ 

As  a  rule,  the  failure  of  consideration  must  be  total  in  order  to  en- 
title a  person  to  recover  money  paid  under  a  contract.  If  he  has  in 
fact  received  a  part  of  the  consideration,  so  that  the  failure  of  con- 
sideration is  only  partial,  his  remedy,  if  he  has  any,  is  for  breach  of 
the  contract  under  which  the  money  was  paid,**  This  is  in  accord 
with  the  rule  which  we  have  heretofore  stated, — that  money  paid  un- 
der a  mistake  cannot  be  recovered  if  an  equivalent  has  been  received. 
Where  a  specific  article  is  sold  with  a  warranty  of  its  quality,  and  is 

80  Cox  V.  Prentice,  3  Maule  &  S.  344.  And  see  Devine  v.  Edwards,  101 
111.  138;   Noyes  v.  Parker,  64  Vt.  379,  24  Atl.  12. 

81  GILES  V.  EDWARDS,  7  Term  R.  181;    Devaux  v.  Conolly,  8  C.  B.  640. 

82  OLAFLIN  V.  GODFREY,  21  Pick.  (Mass.)  1;  Newsome  v.  Graham,  10 
Barn.  &  C.  234 ;  GILES  v.  EDWARDS,  7  Term  R.  181 ;  Joliuson's  Ex'x  v. 
Jennings'  Adm'r,  10  Grat.  (Va.)  1,  60  Am.  Dec.  323;  Earle  v.  Bickford,  6 
Allen  (Mass.)  549,  83  Am.  Dec.  651. 

83  EICHOLZ  V.  BANNISTER,  34  Law  J.  C.  P.  105;  ante,  p.  468. 

84  OLAFLIN  V.  GODFREY,  21  Pidk.  (Mass.)  1;  Ripley  v.  Case,  86  Mich. 
261,  49  N.  W.  46;  Westropp  v.  Solomon,  8  C.  B.  345;  JONES  v.  RYDE,  5 
Taunt.  488;  GURNEY  v.  WOMERSLEY,  4  El.  &  Bl.  133;  Watson  v.  Cresap, 
1  B.  Mon.  (Ky.)  195,  36  Am.  Dec.  572;  YOUNG  v.  COLE,  3  Bing.  N.  C.  724; 
Burchfleld  v.  Moore,  3  El.  &  Bl.  683;  Moore  v.  Garwood,  4  Exch.  GSl;  WOOD 
V,  SHELDON,  42  N.  J.  Law,  421,  36  Am.  Rep.  523 ;   ante,  p.  468. 

85  CRIPPS  V.  RBADE,  6  Term  R.  606;  Schwinger  v.  Hickok,  53  N.  Y.  280; 
Earle  v.  Bickford,  6  Allen  (Mass.)  549,  83  Am.  Dec.  651;  Wright  v.  Dickinson, 
67  Mich.  580,  35  N.  W.  164.  11  Am.  St.  Rep.  602.  And  see  McGoren  v.  Avery, 
37  Mich.  120;  Merryfleld  v.  Willson,  14  Tex.  224,  65  Am.  Dec.  117;  ante,  p. 
470.    See  Keener,  Quasi  Cont.  125. 

86  HUNT  V.  SILK,  5  East,  783;  Rand  v.  Webber,  64  Me.  191;  Blackburn  v. 
Smith,  2  Exch.  783;  Harnor  v.  Groves,  15  C.  B.  667;  Smart  v.  Gale,  62  N.  H. 
62. 

Clakk  Cont.  (2d  Ed.)— 35 


546  QUASI  CONTRACT.  (Ch.  13 

not  altogether  worthless,  a  mere  breach  of  the  warranty  does  not  en- 
title the  purchaser  to  recover  the  price  paid.  His  remedy  is  by  ac- 
tion for  damages  for  breach  of  warranty.*'^  Where  the  consideration 
is  severable,  however,  so  that  the  money  paid  for  a  portion  of  it  may 
be  ascertained,  a  partial  failure  may  entitle  the  plaintiff  to  recover  the 
part  of  the  money  paid  in  respect  of  that  part  of  the  consideration 
which  has  failed.^* 

A  person  can  never  recover  money  paid  on  the  ground  that  the  con- 
sideration has  failed,  if  he  has  obtained  the  specific  consideration  which 
he  bargained  for,  though  it  may  turn  out  to  be  of  no  value ;  ^®  as,  for 
instance,  where  he  has  bought  land  or  goods,  intending  to  take  his 
chances  as  to  the  seller's  title,  or  where  he  has  bought  stock,  bonds,  or 
other  property,  and  taken  the  chance  of  their  being  of  value,^"  There 
must,  as  we  have  said,  have  been  a  misapprehension. 

Where  the  failure  of  consideration  was  caused  by  the  default  of  the 
plaintiff,  he  cannot  recover  the  money  paid  for  it.®^ 

Same — Money  Paid  under  Illegal  Contract. 

Though,  as  we  have  seen,  no  action  will  lie  to  enforce  an  illegal  con- 
tract, an  action  will  be  allowed,  under  some  circumstances,  in  disaf- 
firmance of  it.  Ordinarily,  where  one  of  the  parties  has  paid  money 
under  an  illegal  contract,  he  cannot  sue  to  recover  it  back.  The  law 
will  leave  him  where  he  has  placed  himself.®^  To  this  rule,  as  we  have 
seen,  there  are  some  exceptions.  Where  the  contract  is  still  executory, 
except  for  a  payment  of  money  made  by  one  of  the  parties  to  the 
other,  and  is  not  of  such  a  character  that  the  illegal  object  is  effected 
by  the  mere  payment,  and  is  malum  prohibitum,  and  not  malum  in  se, 
there  is  a  locus  poenitentiae,  and  the  party  who  has  paid  the  money 
may  withdraw  from  the  contract,  and  recover  what  he  has  paid  as 
money  received  for  his  use.^^  The  law  creates  a  quasi  contractual 
obligation,  on  the  part  of  the  party  who  has  received  the  money,  to 
repay  it.  Another  exception  is  where  the  parties  are  not  in  pari  delicto. 
Where  the  party  who  has  paid  money  under  an  illegal  contract  entered 
into  the  contract  under  the  influence  of  fraud  or  strong  pressure,  or 
where  the  law  which  makes  the  contract  unlawful  was  intended  for  his 

8T  Gompertz  v.  Denton,  1  Cromp.  &  M.  207. 

8  8  Devaux  v.  Conolly,  8  C.  B.  640;  Goodspeed  v.  Fuller,  46  Me.  141,  71  Am. 
Dec.  572;    Laflin  v.  Howe,  112  111.  253. 

89  Westlake  v.  Adams,  5  C.  B.  (N.  S.)  266;  TAYLOR  v.  HARE,  1  Bos.  &  P. 
(N.  R.)  260;    Lambert  v.  Heath,  15  Mees.  »&  W.  486;   ante,  p.  460. 

80MORLEY  V.  ATTENBOROUGH,  3  Exch.  500;  Lambert  v.  Heath,  15 
Mees.  &  W.  486;  Westlake  v.  Adams,  5  C.  B.  (N.  S.)  266. 

81  Stray  v.  Russell,  1  El.  &  El.  888,  916. 

82  HOLM  AN  V.  JOHNSON,  1  Cowp.  341;  Tuoro.  v.  Cassin,  1  Nott  &  McC. 
(S.  C.)  173;  Waite  v.  Merrill,  4  Greenl.  (Me.)  102, 16  Am.  Dec.  238;  ante,  p.  33a 

88  Ante,  p.  338. 


§  282)  RECOVERY   FOR   BENEFITS   CONFERRED.  547 

protection,  he  is  not  regarded  as  being  in  pari  delicto  with  the  other 
party,  and  may  recover  what  he  has  paid.'* 


RECOVERY  FOR  BENEFITS  CONFERRED. 

282.  Under  certain  circumstances,  xeh.eTe  one  person  has  conferred 
upon  auotlier  benefits  in  the  way  of  property,  services,  etc.,  and 
cannot  show  a  promise  in  fact  by  the  latter  to  pay  for  them, 
the  law  will  create  an  obligation,  because  of  the  receipt  of  the 
benefits,  to  pay  what  they  are  reasonably  wortb. 

As  we  have  seen,  if  a  man  deHvers  goods  to  another,  or  performs 
services  for  him,  not  under  such  circumstances  as  to  lead  the  latter  to 
believe  them  a  gift,  and  the  latter  accepts  them  or  acquiesces,  a  promise 
to  pay  for  them  will  be  implied  as  a  fact.  Here  there  is  a  true  contract 
shown  by  the  conduct  of  the  parties.  Goods  may  be  delivered,  how- 
ever, or  services  rendered,  under  circumstances  showing  that  there  is 
no  agreement  in  fact,  or  that,  though  there  was  an  agreement,  a  con- 
dition has  not  been  performed  by  one  of  the  parties  so  as  to  entitle  him 
to  sue  the  other  on  it,  or  for  some  reason  it  is  unenforceable,  or  is  illegal. 
Under  these  circumstances  the  law  will  sometimes  create  an  obligation 
to  pay  for  the  goods  delivered  or  services  rendered."^  There  has,  in 
these  cases,  been  an  agreement  in  fact,  which  for  some  reason  will  not 
support  an  action,  and  the  goods  have  been  deUvered,  or  the  services 
rendered,  under  this  agreement.  It  needs  no  argument  to  show  that 
you  cannot  imply  as  a  fact  any  other  promise  to  pay  than  the  unen- 
forceable promise  proven  to  have  been  made.  The  question  is  one  of 
evidence,  and  the  promise  shown  to  have  been  made  in  fact  prevents 
the  implication  of  any  other  promise  in  fact.  Any  implied  promise  to 
pay  must  be  implied  as  a  matter  of  law,  or  created  by  the  law,  and 
must  therefore  be  quasi  contractual,  and  not  contractual.  We  cannot 
go  at  much  length  into  the  various  circumstances  under  which  such 
a  promise  will  be  created,  but  will  mention  some  of  the  most  important. 

Same — Liability  for  Necessaries. 

We  have  seen  that,  though  an  infant  or  an  insane  or  drunken  person 
is  ordinarily  incapable-  of  making  a  contract  which  will  bind  him,  he 
is  liable  for  necessaries  furnished  him.  He  is  not  liable  for  what  he 
may  have  agreed  to  pay  for  them,  but  only  for  what  they  are  worth. 
It  would  seem  from  this  that  the  promise  is  one  created  by  law,  and 
therefore  quasi  contractual.'^     To  so  regard  it  would  make  the  law 

»4  Ante,  p.  340. 

»o  VAN  DEUSEN  V.  BLUM,  IS  Pick.  (Mass.)  229,  29  Am.  Dec.  582;  TURNER 
V,  WEBSTER,  24  Kan.  38.  3G  Am.  Rep.  251. 

» 6  Keener,  Quasi  Cont.  20;  ante,  p.  159;  Rhodes  v.  Rhodes,  44  Ch.  Div. 
94;    SCEVA  v.  TRUE,  53  N.  H.  U27;    TRAINER  v.  TRUMBULLs  141  Mass 


548  QUASI  CONTRACT.  (Ch.  13 

more  consistent.  It  does  not  seem  consistent  to  say  that  because  of 
the  immature  judgment  of  an  infant,  or  because  of  the  diseased  mind 
of  a  lunatic,  he  cannot  consent,  and  therefore  cannot  enter  into  a  bind- 
ing agreement,  and  to  say  in  the  next  breath  that  he  may  bind  himself 
for  necessaries.  It  is  better  to  say  that  the  law  makes  him  liable  for 
necessaries.  As  we  have  seen,  however,  many  of  the  courts  regard 
the  liability  as  based  upon  the  express  promise.  They  allow  an  action, 
for  instance,  on  a  note,  or  other  express  promise,  given  for  necessaries, 
provided  it  is  such  that  the  consideration  may  be  inquired  into,  so  that 
the  recovery  may  be  limited  to  what  the  necessaries  are  reasonably 
worth. ®^ 

We  have  also  seen  that,  where  a  husband  leaves  his  wife  without 
means  of  support,  the  law  gives  her  authority  to  pledge  his  credit  to  ob- 
tain necessaries.  Not  only  is  this  true,  but  the  law  will  hold  a  hus- 
band liable  in  assumpsit  for  necessaries  furnished  his  abandoned  wife 
while  she  is  unconscious,  and  will  hold  an  insane  or  infant  husband 
liable  for  necessaries  furnished  his  wife.  The  liability  thus  imposed 
upon  the  husband  is  imposed  by  law  without  his  consent,  and  is  clearly 
quasi  contractual.®^  Under  like  circumstances  a  man  may  be  liable  for 
necessaries  furnished  his  children.®* 

Same — Forcing  Benefit  upon  Another. 

Neither  a  liability  ex  contractu  nor  a  liability  quasi  ex  contractu  can 
be  imposed  upon  a  person  otherwise  than  by  his  act  or  consent.  One 
man  cannot  force  a  benefit  upon  another  without  his  knowledge  or 
consent,  and  then  compel  him  to  pay  for  it.^""  If  a  person  intentionally 
and  knowingly  performs  services  for  another,  or  otherwise  confers  a 
benefit  upon  him,  without  his  knowledge,  so  that  he  has  no  opportunity 
to  refuse  the  benefit,  the  law  will  not  create  a  liability  to  pay  for  it.^°^ 
So,  where  a  person  supplies  another  with  goods,  the  latter  supposing 
that  he  is  being  supplied  by  another  person  with  whom  he  has  con- 


527,  6  N.  E.  761 ;  Gay  v.  Ballou,  4  Wend.  (N.  Y.)  403,  21  Am.  Dec.  158;  Earle 
V.  Reed,  10  IMetc.   (Mass.)  3S7. 

97  Ante,  p.  159. 

88  Ante,  p.  158;  Cunningham  v.  Reardon,  98  Mass.  538.  96  Am.  Dec.  670; 
Chappie  V.  Cooper,  13  Mees.  &  W.  252 ;  Turner  v.  Frisby,  1  Strange,  168. 

99  Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307;  Van  Valkin- 
burgh  V.  Watson.  13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395;  People  v.  Moores, 
4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272;  In  re  Ryder,  11  Paige  (N,  Y.)  185,  42 
Am.  Dec.  109.     But  see  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499. 

100  Ante,  pp.  349,  350. 

101  BARTHOLOMEW  v.  JACKSON,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237; 
Dunbar  v.  Williams,  10  Johns.  (N.  Y.)  249;  Glenn  v.  Savage,  14  Or.  567,  13 
Pac.  442;  EARLE  v.  COBURN,  130  Mass.  596;  Shaw  v.  Graves,  79  Me. 
166,  8  Atl.  884. 


§  282)  RECOVERY  FOR  BENEFITS  CONFERRED.  549 

tracted  for  the  goods,  the  law  not  only  will  not  imply  a  promise  in 
fact  to  pay  for  the  goods,  but  it  will  not  even  create  a  promise.^"^ 

Same — Benefits  Rendered  Gratuitously. 

If  benefits  are  conferred  gratuitously,  the  law  will  not  create  a  promise 
to  pay  for  them,  even  though  they  may  have  been  requested.^"^  A 
person,  for  instance,  who  has  rendered  services  for  another  in  the  ab- 
sence of  any  intention  of  charging  for  them  on  the  one  side,  or  of  pay- 
ing for  them  on  the  other,  cannot  afterwards  recover  for  them.  Where 
necessaries  are  furnished  to  an  infant,  or  an  unconscious  person,  with 
the  intention  of  charging  for  them,  the  law,  as  we  have  seen,  will  create 
a  promise  to  pay  their  reasonable  value.  Where,  however,  there  is 
no  intention  at  the  time  to  charge  for  the  necessaries  furnished,  the 
law  will  not  create  a  Hability. 

Same — Goods  Wrongfully  Obtained — Waiver  of  Tort. 

We  have  seen  that,  where  goods  are  wrongfully  obtained  and  con- 
verted into  money,  an  action  will  lie  by  the  owner  to  recover  the  money 
received  as  money  received  for  his  use.  Such  an  action  does  not  lie 
where  the  goods  are  retained  by  the  wrongdoer,  and  not  sold.  As  to 
whether,  in  such  a  case,  the  owner  must  sue  in  tort,  as  he  may  do,  of 
course,  or  whether  he  may  waive  the  tort,  and  sue  in  assumpsit  for  the 
value  of  the  goods  as  upon  a  fictitious  sale,  the  authorities  are  con- 
flicting.    Some  courts  allow  such  an  action,^"*  while  others  do  not.^°^ 

Same — Part  Performance  of  Contract. 

As  we  have  seen  in  treating  of  discharge  of  contract  by  breach,  a 
party  to  a  contract  is  not  discharged  from  liability  to  perform  by  the 

102  BOSTON  ICE  CO.  v.  POTTER,  123  Mass.  28,  25  Am.  Rep.  9;  Sclimaling 
V.  Thomlinson,  G  Taunt.  147. 

108  Disbrow  v.  Durand,  54  N.  J.  Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678; 
Brown  v.  Tuttle,  80  Me.  162,  13  Atl.  583;  COOPER  v.  COOPER,  147  Mass. 
370,  17  N.  E.  892,  9  Am.  St.  Rep.  721;  Doyle  v.  Trinity  Cliurcli,  133  N.  Y. 
372,  31  N.  E.  221;  Patterson  v.  Collar,  31  111.  App.  340;  Collar  v.  Patterson,  137 
111.  403,  27  N.  E.  604;    ante,  p.  41. 

104  RUSSELL  V.  BELL.  10  Mees.  &  W.  340;  Willson  v.  Foree,  6  Johns.  (X. 
Y.)  110,  5  Am.  Dec.  195;  Toledo,  W.  &  W.  Ry.  Co.  v.  Chew,  67  111.  378; 
Aldine  Mfg.  Co.  v.  Barnard,  84  Mich.  632,  48  N.  W.  280;  Goodwin  v.  Griffis, 
88  N.  Y.  629;  Walker  v.  Duncan,  68  Wis.  624,  32  N.  W.  689;  Lehmann  v. 
Schmidt,  87  Cal.  15,  25  Pac.  161;  Blalock  v.  Phillips,  38  Ga.  216;  DIETZ'S 
ASSIGNEE  V.  SUTCLIFFE,  80  Ky.  650;  Morford  v.  White,  53  Ind.  547; 
Newton  Mfg.  Co.  v.  White,  53  Ga.  395;  Evans  v.  Miller,  58  Miss.  120,  38 
Am.  Rep.  313;   Logan  v.  Wallis,  76  N.  C.  416. 

10  5  Jones  V.  Hoar,  5  Pick.  (Mass.)  285;  Allen  v.  Ford,  19  Pick.  (Mass.)  217; 
Androscoggin  Water  Power  Co.  v.  Metcalf,  65  Me.  40;  Bethlehem  Borough 
V.  Fire  Co.,  81  Pa.  445;  Sandeen  v.  Railroad  Co.,  79  Mo.  278;  Galloway  v. 
Holmes.  1  Doug.  (Mich.)  330  (but  see  Aldine  Mfg.  Co.  v.  Barnard,  supra); 
Winchell  v.  Noyes,  23  Vt.  303;  Strother's  Adm'r  v.  Butler,  17  Ala.  733; 
FERGUSON  V.  CARRIXGTON,  9  Barn.  &,  C.  59.  But  see  RUSSELL  v. 
FALL,  10  Mees.  &  W.  340. 


550  QUASI   CONTRACT.  (Ch.  13 

failure  of  the  other  party  to  perform  a  part  of  his  promise  which  is 
merely  subsidiary,  and  does  not  go  to  the  essence  of  the  contract ;  nor, 
where  a  contract  consists  of  several  promises  based  on  several  con- 
siderations, so  that  the  promises  are  divisible,  does  a  failure  to  perform 
one  or  more  discharge  the  other  party  from  liability  to  pay  for  those 
that  have  been  performed.  In  these  cases  the  party  thus  partially  in 
default  may  recover  for  what  he  has  done,  leaving  the  other  party 
to  recover  damages  from  him  for  his  partial  breach.  The  recovery 
is  on  the  contract  itself.  Where,  however,  the  breach  is  not  merely  of 
a  subsidiary  promise,  or  of  one  or  more  of  several  promises,  but  of  a 
term  which  the  parties  regarded  as  of  the  essence  of  the  contract,  or 
there  is  a  failure  to  fully  perform  an  indivisible  promise,  the  question 
arises  whether  the  other  party  is  liable  for  the  benefits  he  has  received 
from  the  partial  performance.  That  he  is  not  liable  on  the  contract 
itself  is  clear,  for  he  can  only  recover  on  it  by  showing  that  he  has 
substantially  performed  what  he  has  agreed  to  perform  as  a  condition 
precedent  to  the  other's  liability.  The  other  party  has  not  agreed  to 
pay  him  for  a  partial  performance,  and  any  liability  must  be  created 
by  the  law  without  agreement,  or  quasi  ex  contractu. 

Under  certain  circumstances  such  a  liability  is  created.  The  right  to 
recover  is  based,  not  on  principles  of  the  law  of  contract,  but  on  equita- 
ble principles;  and  it  would  be  beyond  the  scope  of  our  work  to  go 
into  the  subject  at  any  length.  It  must  suffice  to  call  attention  to  a  few 
of  the  most  important  cases  in  which  such  a  recovery  has  been  allowed. 
Where  a  person  has  willfully  refused  or  failed  to  fully  perform  a  con- 
tract which  he  was  bound  to  perform,  it  is  clear  that  he  should  not,  and 
cannot,  recover,  for  what  he  has  performed  under  it.^°®  If  his  de- 
fault was  not  willful,  but  because  of  sickness,  death,  prevention  by  the 
other  party,  or  any  other  cause,  not  arising  from  his  own  fault,  and 
excusing  the  breach,  then  he  can  recover  from  the  other  party  on  a 
promise  created  by  the  law  to  pay  for  the  benefits  he  has  received  from 
the  part  performance.^"^     And,  by  the  weight  of  authority,  where  one 

106  Ante,  pp.  431,  461,  462,  and  cases  cited  in  notes  177,  178. 

107  Wolfe  V.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388;  Robinson  v.  Davison, 
L.  R.  6  Excli.  269;  Boast  v.  Firth,  L.  R.  4  C.  P.  1  ;  SPALDING  v.  ROSA,  71 
N.  Y.  40,  27  Am.  Rep.  7;  JONES  v.  JUDD,  4  N.  Y.  412;  LAKEMAN  v. 
POLTvARD,  43  Me.  463,  69  Am.  Dec.  77;  Green  v.  Gilbert,  21  Wis.  395; 
Clark  V.  Gilbert,  26  N.  Y.  279,  84  Am.  Dec.  189;  Martus  v.  Houck,  39  Mich. 
431,  33  Am.  Rep.  409;  Jennings  v.  Lyons,  39  Wis.  553,  20  Am.  Rep.  57;  Pinches 
V.  Lutheran  Church,  .55  Conn.  183,  10  Atl.  264;  ShiUtz  v.  Johnson,  5  B.  Mon. 
(Ky.)  497;  Adams  v.  Crosby,  48  Ind.  1.53;  Harrington  v.  Iron-Works  Co.,  119 
Mas8.  82;  Stewart  v.  Lorlng,  5  Allen  (Mass.)  306,  81  Am.  Dec.  747;  Fuller  v. 
Brown,  11  Mete.  (Mass.)  440;  HAYWARD  v.  LEONARD,  7  Pick.  (Mass.) 
181,  19  Am.  Dec.  269;  SCULLY  v.  KIRKPATRICK,  79  Pa.  324,  21  Am.  Rep. 
62;  Allen  v.  Baker,  86  N.  C.  91,  40  Am.  Rnp.  444;  Oilman  v.  Hall,  11  Vt.  510, 
34  Am.  Dec.  700 ;   Feuton  v.  Clark,  11  Vt  557 ;   Hubbard  v.  Belden,  27  Vt  045 ; 


§  282)  RECOVERY   FOR   BENEFITS   CONFERRED.  5ol 

of  the  parties  to  a  contract  has  endeavored  in  good  faith  to  perform  it, 
and  has  substantially  done  so,  and  thereby  conferred  a  substantial  bene- 
fit on  the  other  party,  though  he  has  failed  to  perform  the  contract  in 
some  particulars,  he  may  recover  what  the  partial  performance  is  rea- 
sonably worth,  having  regard,  however,  to  the  contract  price.^°* 

If,  by  the  express  terms  of  the  contract,  there  is  no  liability  except 
upon  a  full  performance,  there  can  be  no  recovery  for  a  part  perform- 
ance, even  where  the  contract  is  divisible,  and  a  full  performance  is 
prevented  by  death  or  other  cause  beyond  the  control  of  the  parties. 
The  terms  of  the  express  contract  exclude  the  arising  of  any  such  im- 
plied contract  as  could  form  the  basis  of  a  claim  upon  a  quantum 
meruit.^"" 

Same — Retaining  Benefits. 

Where  benefits  are  conferred  by  one  person  on  another  under  such 
circumstances  as  to  raise  no  promise  in  fact  or  in  law  to  pay  for  them, 
he  may  nevertheless  become  liable  by  retaining  them.  If  a  person,  for 
instance,  were  to  receive  goods  from  another,  reasonably  but  mistakenly 
believing  them  to  be  intended  as  a  gift,  and,  after  learning  of  his  mis- 
take, should  retain  them,  when  he  might  return  them,  or,  by  the  weight 
of  authority,  if  he  should  receive  part  of  the  goods  purchased  from 
another,  and  retain  them  after  failure  of  the  latter  to  supply  the  rest 
of  the  goods,  the  law  would  compel  him  to  pay  for  them."**  And  the 
same  rule  would  apply  where  benefits  are  in  any  other  way  received 
under  such  circumstances  as  to  create  no  contractual  obligation,  and 
are  retained  when  they  should  in  justice  be  returned.  If,  however, 
the  benefits  thus  received  are  incapable  of  being  returned,  as  where  they 
consist  of  services,  or  of  material  which  has  been  used  in  repairing  a 
house,"^  it  would  seem  that  no  liability  should  be  created.  If  a  man 
engages  a  servant  for  a  specified  time,  and  agrees  to  pay  him  if  he 
works  for  that  time,  his  rendition  of  the  services  is  a  condition  pre- 
cedent to  his  right  to  recover  for  them  on  the  contract.  If  he  leaves 
his  employer's  service,  without  excuse,  before  the  time  has  expired,  he 
certainly  cannot  recover  on  the  contract  without  a  violation  of  the 
plainest  principles  of  the  law  of  contract.  The  master  cannot  return 
the  benefit  he  has  received  from  the  part  performance,  and  he  should 
not  be  held  liable  to  pay  for  it.     Some  courts  allow  the  servant  to  re- 

YERRINGTON  v.  GREEN,  7  R.  I.  5S9,  84  Am.  Dec.  578;  Norris  v.  School 
Dist.,  12  Me.  293,  28  Am.  Dec.  182;  Wadleigh  v.  Town  of  Sutton.  G  N.  H. 
15,  23  Am.  Dec.  704;   Mooney  v.  Iron  Co.,  82  Mich.  2G3,  46  N.  W.  37G;   ante, 

p.  468. 

108  Ante,  p.  431.  io»  Cutter  v.  Powell,  6  Term  R.  320. 

110  OXENDALE  V.  WETHERP^LL,  9  B.  &  C.  286,  and  cases  cited,  ante,  p. 
453,  note  145.  But  see,  contra,  CHAMPLIN  V.  ROWLEY,  18  Wend.  187,  and 
cases  cited,  ante,  p.  468,  note  453. 

111  Ante,  p.  431. 


552  QUASI  CONTRACT.  .     (Ch.  13 

cover  on  the  quantum  meruit,  though  he  has  broken  his  contract  with- 
out excuse.     The  weight  of  authority,  however,  is  to  the  contrary.^^^ 

Same — Part  Performance  of  Illegal  Contract. 

Difficult  questions  have  arisen  where  it  has  been  sought  to  recover 
for  benefits  conferred  under  an  illegal  contract.  We  have  already  seen 
that  an  action  for  money  had  and  received  will  lie  to  recover  money 
paid  under  an  illegal  contract  which  has  not  been  carried  out,  provided 
the  illegal  object  has  not  been  effected  by  the  mere  payment  of  the 
money,  and  provided  the  object  is  malum  prohibitum,  and  not  malum 
in  se.  We  have  also  seen  that  in  certain  cases  the  parties  to  an  illegal 
contract  are  not  regarded  as  being  in  pari  delicto,  and  that  the  person 
who  is  the  less  guilty  is  allowed  to  recover  what  he  has  paid  under  the 
contract.  So,  also,  where  a  person  has  performed  services  under  an 
illegal  contract,  and  he  is  not  in  pari  delicto  with  the  other  party,  he 
may  be  allowed  to  recover  what  the  services  are  worth.  Where  an 
illegal  contract  has  been  performed,  and  the  illegal  object  effected, 
neither  party,  if  he  knew  of  the  illegality,  can  recover  for  the  benefits 
conferred  upon  the  other. 

Same — Part  Performance  of  Unenforceable  or  Void  Agreement. 

Where  an  agreement  is  not  illegal,  but  merely  void,  or  unenforce- 
able, and  one  of  the  parties  refuses  to  perform  his  promise  after  per- 
formance or  part  performance  by  the  other,  the  law  will  create  a  prom- 
ise to  pay  for  the  benefits  received.  If  a  man  delivers  goods,  or  con- 
veys land,  or  renders  services  for  another  under  a  contract  which  is 
void  or  unenforceable,  but  not  illegal,  he  may  recover  on  the  quantum 
valebat  or  quantum  meruit.^ ^^  Such  is  the  case  with  contracts  which 
are  unenforceable  because  of  noncompliance  with  the  statute  of 
frauds.^  ^* 

A  party,  however,  who  has  partly  performed  a  contract  which  is 
merely  unenforceable  and  not  illegal,  cannot,  by  the  weight  of  au- 
thority, abandon  it,  and  recover  for  the  part  performance,  if  the  other 
party  is  willing  to  carry  out  the  contract.^ ^"^ 

112  Ante,  p.  462. 

113  Nugent  V.  Teachout,  67  Mich.  571,  35  N.  W.  254;  Patten  v.  Hicks,  43 
Cal.  509 ;  Rebman  v.  Water  Co.,  95  Cal.  390,  30  Pac.  564 ;  Ellis  v.  Cory,  74 
Wis.  176,  42  N.  W.  252,  4  L.  R.  A.  55,  17  Am.  St.  Rep.  125 ;  Lapham  v.  Osborne, 
20  Nev.  168,  18  Pac.  881 ;  Smith  v.  Wooding,  20  Ala.  324 ;  Little  v.  Martin,  3 
Wend.  (N.  Y.)  219,  20  Am.  Dec.  688;  Montague  v.  Garnett,  3  Bush  (Ky.)  297; 
ante,  p.  95. 

114  See  cases  above  cited. 

iiB  Philbrook  v.  Belknap,  6  Vt.  383;  Galway  v.  Shields,  66  Mo.  313,  27  Am. 
Rep.  351 ;  Ketchum  v.  Evertson,  13  Johns.  (N.  Y.)  359,  7  Am.  Dec.  384 ;  Collier 
V.  Coates,  17  Barb.  (N.  Y.)  473;  Greton  v.  Smith,  33  N.  Y.  245;  Nelson  v. 
Shelby  Manuf  g  &  Imp.  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116 ; 
McKinney  v.  Harvie,  38  Minn.  18,  35  N.  W.  668,  8  Am.  St  Rep.  640;    Sennett 


§  282)         RECOVERY  FOR  BENEFITS  CONFERRED.  553 

Same — On  Rescission  of  Contract. 

As  we  have  seen,  if  a  person  has  obtained  money  from  another  un- 
der an  agreement  which  the  latter  has  the  right  to  rescind  on  the  ground 
of  fraud,  duress,  or  undue  influence,  or  on  the  ground  of  want  or  fail- 
ure of  consideration,  or  want  of  capacity  to  contract,  or  because  of  a 
breach  of  his  contract  by  the  other  operating  as  a  discharge,  he  may, 
on  rescinding  the  contract,  recover  the  amount  paid  as  money  received 
for  his  use.^^*  So,  by  the  weight  of  authority,  where  a  person,  for 
like  reasons,  rescinds  a  contract  which  he  has  partly  performed  by  the 
rendition  of  services,  he  may  recover  for  the  services  on  a  promise 
created  by  law  because  of  their  receipt  and  the  benefit  conferred.^ ^^ 

The  existence  of  the  special  contract  in  these  cases  which  has  been 
rescinded  precludes  the  implication  of  any  other  contract  in  fact.  The 
obligation,  therefore,  is  necessarily  imposed  by  law. 

V.  Shehan,  27  Minn.  328,  7  N.  W.  266 ;  Kriger  v.  Leppel,  42  Minn.  6,  43  N.  W. 
484;  Sims  v.  Hutchins,  8  Smedes  &  M.  (Miss.)  331,  47  Am.  Dec.  90;  Abbott 
V.  Inskip,  29  Ohio  St  59 ;  Shaw  v.  Shaw,  6  Vt  69 ;  Plummer  v.  Bucknam,  55 
Me.  105;  Clark  v.  Terry,  25  Conn.  395;  HAWLEY  v.  MOODY,  24  Vt  605; 
ante,  p.  129.  Contra,  KING  v,  WELCOME,  5  Gray  (Mass.)  41  (but  see  Riley  v. 
Williams,  123  Mass.  506) ;  Koch  v.  Williams,  82  Wis.  186,  52  N.  W.  257. 

116  Ante,  p.  536. 

iiT  Palanch6  v.  Colburn,  8  Bing.  14;  Ex  parte  Maclure,  L.  R.  5  Ch.  App. 
737 ;  Seipel  v.  Insurance  Co.,  84  Pa.  47 ;  Gaffney  v.  Hayden,  110  Mass.  137,  14 
Am.  Rep.  580;  Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  WILLIAMS  v.  BEMIS, 
108  Mass.  91,  11  Am.  Rep.  318 ;  Brown  v.  Railway  Co.,  36  Minn.  236,  31  N.  W. 
941 ;  Shane  v.  Smith,  37  Kan.  55,  14  Pac.  477 ;  ante,  p.  549. 


TABLE  OF  CASES  CITED. 


[the  figures  refer  to  pages.] 


Aaron  v.  Harley,  IGO. 
Abbott  V.  Creal,  183. 

V.  Doane,  129. 

V.  Hapgood,  504. 

V.  Inskip,  553. 

V.  Rose,  198,  483. 

V.  Sliepard,  26. 
Abell  V.  Munson,  65,  426. 
Abraham  v.  Railroad,  404. 
Abrams  v.  Railway  Co.,  319. 
Abshire  v.  Corey,  369,  441. 
Acbeson  v.  Chase,  274. 
Ackert  v.  Barker,  296,  298. 
Ackley  v.  Parmenter,  69. 
Acme  Electric,  etc.,  Co.  v. 

beck,  269. 
Acme  Mfg.  Co.  v.  Reed,  24. 
Adair  v.  Winchester,  364. 
Adams  v.  Adams,  73,  304. 

V.  Bank,  243,  245. 

V.  Beall,  1&4,  165,  174. 

V.  Coulliard,  329. 

V.  Crosby,  550. 

V.  Frye,  481,  483. 

V.  Gay,  266,  269,  343. 

V.  Jones,  24. 

V.  Kuehn,  354. 

V.  Leavens,  3G9. 

V.  Lindsell,  25,  31. 

V.  Messinger,  490. 

V.  Nichols,  473. 

T.  Otterback,  397,  398. 

V.  Reeves,  543. 

V.  Rodarmel,  369. 

V.  Ryan,   54. 

V.  Schiffer.  244. 

y.  Shirk,  354. 

V.  Stewart,  264. 

Clabk  Cont.(2d  Ed.) 


Adams  County  v.  Hunter,  283. 
Adams  Express  Co.  v.  Reno,  338. 

V.  Trego,  430. 
Adams  Radiator  &  Boiler  Works  v. 

Schnader,  432. 
Addyston  Pipe  &  Steel  Co.  v.  U.  S., 

313. 
Adkins  v.  Watson,  87. 
Adler  v.  Railroad  Co.,  366. 
Adriance  v.  Rutherford,  429,  525. 
Aetna  Ins.  Co.  v.  Reed,  226. 
Aetna  Iron  &  Steel  Works  v.  Kossuth 

County,  431. 
Aetna  Life  Ins.  Co.  v.  France,  215. 
V.  Nexsen,  488. 
V.  Sellers,  182. 
Van  Der-    Aetna  Nat.  Bank  v.  Winchester,  479. 
Agnew  V.  Dumas,  103. 
Ahern  v.  Baker,  527. 
Aiken  v.  Blaisdell,  260-262,  265,  329, 
345. 
V.  Nogle,  82. 
Aiman  v.  Stout,  180. 
Ainslie  v.  Martin,  146. 

V.  Wilson,  536,  538. 
Aitkin  v.  Lang's  Adm'r,  37. 
A.  J.  Anderson  Electric  Co.  v.  Light- 
ing Co.,  426. 
Akin  V.  Peters,  436. 
Alabama  G.  S.  R.  Co.  v.  Railroad  Co., 

76. 
Alabama  Mineral  Land  Oo.  v.  Jackson, 

86. 
Alaska  Packers'   Ass'n   v.   Domenico, 

128. 
Albatross,  Steamboat,  v.  Wayne,  396. 
Albert's  Ex'rs  v.  Ziegler's  Ex'rs,  419. 
Alcott  V.  Barber,  264. 
Alden  v.  Wright,  233. 
Alderson  v.  Langdale,  480,  483. 

(555) 


556 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Aldine  Mfg.  Co.  v.  Barnard,  549. 
Aldous  V.  Cornwell,  481. 
Aldrich  v.  Aldrich,  534. 

V.  Ames,  70. 

V.  Blackstone,   267. 

V.  Funk,  166. 

V.  Grimes,  168. 

V.  Jackson,  469. 

V.  Jewell,  68. 

V.  Price,  426. 

V.  Wilmartb,  514. 
Alexander  v.  Barker,  344. 

V.  Brogley,  229. 

V.  Gish,  359. 

V.  Jones,  505. 

V.  Pierce,  240-242. 

V.  Swackhamer,   200. 

V.  Vane,  534. 
Alfred  Shrimpton  &  Sons  v.  Dworsky, 
100. 

V.  Philbrick,  229. 
AJger  V.  Scoville,  70. 

V.  Thacber,  59,  306,  308. 
Alker  v.  Alker,  218. 
Allan  V.  Lake,  463. 
Allard  v.  Greasert,  103. 

V.  Lamirande,  300. 
Allcord  V.  Skinner,  250. 
Allegre's   Adm'rs   v.   Insurance   Co., 

219,  295. 
Allen  V.  Alien,  17,  58,  460. 

V.  Baker,  476,  550. 

V.  Bank,  399. 

V.  Berryhlll,  182.  185. 

V.  Bryson,  138,  139. 

V.  Chouteau,  29,  43. 

V.  Compress  Co.,  428. 

V.  Culver,  439. 

V.  Deming,  269. 

V.  Duffie,  118,  268. 

V.  Ford,  549. 

V.  Gardner,  267. 

V.  Hammond,  201. 

V.  Hart,  218,  224,  229. 

V.  Hartfleld,  222,  459. 

V.  Hawks.  390. 

V.  Jaquish,  424. 

V.  Kennedy,  375. 

V.  Kirwan,  42. 

V.  Lardner,  155. 

V.  Pearce,  323. 

V.  Plasmeyere,  126. 

V.  Rescous,  256,  257. 

V.  Sowerby,  426. 


Allen  V.  Watson,  526. 

V.  Witbrow,  355. 

V.  Woodward,  138. 
Aller  V.  Aller,  60. 
Allgeyer  v.  Louisiana,  260. 
Alliance  Bank  v.  Broom,  123. 
Allin  V.  Sbadburne's  Ex'r,  5,  380,  381. 
Allis  V.  Billings,  182,  184,  185. 

V.  McLean,  488. 

V.  Voigt,  514. 
Allore  V.  Jewell,  251. 
Allred  V.  Bray,  503. 
Allshouse  V.  Ramsey,  97. 
Almond  v.  Hart,  72. 
Alston  V.  Boyd,  180. 
Alsworth  V.  Cordtz,  162. 
Alt  V.  Graff,  175. 
Alton  V.  Bank,  206. 
Alvarez  v.  Brannan,  230. 
Alves  V.  Hodgson,  345. 
Alvord  V.  Collin,  282. 

v.  Smitb,  38,  277. 
Alwortb  V.  Seymour,  527. 
Ambler  v.  Phillips,  397. 
American    Emigrant    Co.    v.    Adams 

County,  451. 
American   Bonding    &   Trust   Co.    v. 

Takabashi,  519. 
American  Box  Macb.  Co.  v.  Grossman, 

489. 
American  Cotton  Oil  Co.  v.  Kirk,  119. 
American  Exeb.  Nat.  Bank  v.  Railroad 

Co.,  356. 
American  Gas  &  Oil  Min.  Co.  v.  Wood, 

403. 
American    Mortgage   Co.    v.    Wright, 

167,  169, 
American  Pencil  Co.  v.  Wolfe,  70. 
American  Surety  Co.  v,  Pauly,  406. 
Ames  V.  Booming  Co.,  510. 

V.  Gilman,  264. 

V.  Railroad  Co.,  350,  522. 
Amestoy  v.  Transit  Co.,  293. 
Amey  v.  Cockey,  166. 
Amis  V.  Kyle,  267. 
Ammerman  v.  Ross,  274. 
Ammondson  v.  Ryan,  273. 
Amory  v.  Gilman,  276,  277. 
Amoskeag  Mfg.  Co.  v.  U.  S.,  409. 
Amsden  v.  Atwood,  447. 
Anchor  Electric  Co.  v.  Hawkes,  309. 
Anderson  v.  Anderson,  241. 

Y.  Armstead,  201,  470. 

V.  Baugbman,  405. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


551 


Anderson  v.  Brewing  Co.,  94. 

V.  Farns,  327. 

V.  Granite  Co.,  492. 

V.  Harold,  89. 

V.  Insurance  Co.,  219. 

V.  Jett,  289. 

V.  Martindale,  382,  384. 

V.  May,  476. 

V.  Reardon,  367. 

V.  Smith,  151. 

V.  Soward,  167, 

V.  Spence,  70. 

V.  Todd,  431. 

V.  U.  S.,  314. 

V.  Van  Alen,  368. 

V.  Walter,  390. 

V.  Wbitaker,  400. 
Anderson  Electric  Co.  v.  Lighting  Co., 

426. 
Anderson  School  Tp.  v.  Milroy  Lodge, 

65. 
Andiug  V.  Levy,  346. 
Andre  v.  Bodman,  69,  72. 

V.  Graebner,  420. 
Andrew  v.  Babcock,  88,  95. 
Andrews  v.  Ass'n,  337. 

V.  Belfield,  432. 

V.  Calloway,  482. 

V.  Herriot,  343. 

V.  Pond,  346. 

V.  Smith,  478. 

V.  Sullivan,  409. 
Androscoggin  Water-Power  Co.  v.  Met- 

calf,  549. 
Angier  v.  Webber,  309. 
Angle  V.  Insurance  Co.,  479. 

V.  Railroad  Co.,  350. 
Anglo-California  Bank  v.  Ames,  186. 
Angus  V.  Robinson,  382. 

V.  Scully,  473. 
Anheuser-Busch     Brewing    Ass'n     v. 
Hutmacher,  204. 

V.  Mason,  330. 
Ann  Berta  Lodge  v.  Leverton,  95. 
Anon.,  00,  78,  192. 
Anthony  v.  Machine  Co.,  194. 
Aplin  V.  Board,  145. 
Appleby  v.  Johnson,  28. 

V.  Myers,  473. 
Applegarth  v.  Robertson,  235. 
Appleman  v.  Fisher,  280,  396 
Appleton  V.  Bascom,  416. 
Appleton  Bank  v.  McGilvray,  511,  543. 


Arbuckle  v.  Reaume,  343, 
Archer  v.  Bogue,  382. 

V.  Freeman,  299. 

V.  Helm,  74. 

V.  Hudson,  248,  250. 
Archibald  v.  Thomas,  405. 
Arend  v.  Smith,  126. 
Argo  V.  Coffin,  179. 
Argus  Oo.  V.  Albany,  83. 
Arkansas  M.  R.  Co.  v.  Whitley,  78. 
Arkansas  Val.  Smelting  Oo.  v.  Belden 

Min.  Co.,  360,  365. 
Arkwright  v.  Newbold,  232. 
Armfield  v.  Tate,  168,  330. 
Armitage  v.  Widoe,  154,  165,  504,  505. 
Armour  v.  Insurance  Co.,  214. 
Armstrong  v.  Bank,  331. 

V.  Best,  345. 

V.  Express  Co.,  319. 

V.  Granite  Co.,  403,  404. 

V.  Lewis,  238. 

V.  McGhee,  41. 

V.  Prentice,  127. 

V.  Stokes,  517,  523. 

V.  Toler,  331,  345. 
Arnheiter  v.  State,  268. 
Arnold  v.  Clifford,  259. 

V.  Garst,  64. 

V.  Iron  Works,  182,  184,  185. 

V.  Kreutzer,  307. 

V.  Sprague,  520. 

V.  Spurr,  501. 
Amot  V.  Coal  Co.,  313,  329. 
Arthur  v.  Gordon,  36. 
Arundel  v.  Trevillian,  303. 
Ashbrook  v.  Dale,  328. 
Ashbury  Carriage  Co.  v.  Riche,  325. 
Ashcroft  V.  Butterworth,  105. 

V,  Morrison,  105. 
Ashfleld  V.  Ashfield,  168. 
Ashley  v.  Dixon,  350,  460. 

v.  Henaban,  431. 

V.  Henehan,  460. 
Ashmead  v.  Reynolds,  185. 
Ashton  V.  Thompson,  249,  250. 
Asiatic  Banking  Corp.,  Ex  parte,  38, 

370. 
Askey  v.  Williams,  156,  160. 
Askin  V.  Lebus,  272. 
Aspell  V.  Hosbein,  270. 
Astley  T.  Reynolds,  540. 
Atcheson  v.  Mallon,  258. 
Atchison  v.  Pease,  74. 


558 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Atchison  R.  Co.  v.  Dill,  244. 

V.  Lawler,  319. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  English, 

78. 
Atherford  v.  Beard,  276. 
Atkins  V.  Anderson,  494. 

V.  Banwell,  140,  535. 

V.  Johnson,  259. 

V.  Owen,  537. 
Atkinson  v.  Allen,  244, 

V.  Cox,  437. 

V.  Dance,  495. 

V.  Denby,  341. 

V.  Truesdell,  397. 
Atkyns  v.  Kinnier,  310. 
Atlanta  Min.  Oo.  v.  Gwyer,  273. 
Atlantic  Cotton  Mills  v.  Orchard  Mills, 

541. 
Atlantic  Phosphate  Co.  v.  Ely,  343. 
Atlantic  &  P.  Tel.  Co.  v.  Barnes,  217. 
Atlas  Bank  v.  Bank,  341. 

V.  Rif^wnell,  217. 
Atlas  Nat.  Bank  v.  Holm,  258. 
Atlee  V.  Backhouse,  243,  540. 

V.  Bartholomew,  392. 

V.  Fink,  302,  509. 
Attaway  v.  Bank,  302. 
Attrill  V.  Patterson,  430,  52G. 
Atwater  v.  Hough,  100. 

V.  Manville,  278,  337. 
Atwell  V.  Milton,  381. 
Atwood  V.  Cobb,  83,  86,  404,  405. 

V.  Cornwall,  435. 

V.  Emery,  405. 

V.  Marshall,  55. 

V.  Mt.  Holly,  422. 

V.  Norton,  81. 
Aubert  v.  Maze,  261. 
Audenreid's  Appeal,  249. 
Audette  V.  L' Union  St.  Joseph,  460. 
Auditor  v.  Ballard,  40. 
Audrieu,  Succession  of,  141,  142. 
Audubon  v.  Insurance  Co.,  494. 
Augusta  Ins.  &  Banking  Co.  v.  Ab- 
bott, 214. 
Augusta  Southern  R.  Co.  v.  Smith  & 

Kilby  Co.,  426. 
Aulger  V.  Clay,  440. 
Aultman  v.  Waddle,  296. 
AuJtman  &  Taylor  Co.  v.  Ti'ainer,  470. 
Austin  V.  Bacon,  273. 

V.  Seligman,  356. 

V.  Wacks,  409. 
Austrian  v.  Springer,  399. 


Averill  v.  Hedge,  26,  31,  35. 
Avery  v.  Bowden,  444,  446. 

V.  Dougherty,  519. 

V.  Halsey,  327. 

V.  Miller,  463. 

V.  Willsou,  212. 

V.  Wilson,  453. 
Await  V.  Ass'n,  541. 
Ayer  v.  Hawkins,  437,  438. 

V.  Kilner,  423. 

V.  Mfg.  Co.,  394,  515. 

V.  Telegraph  Co.,  204. 
Ayerst  v.  Jenkins,  300,  334. 
Aylesford  v.  Morris,  252. 
Ayres  v.  French,  222. 

V.  Railroad  Co.,  12& 

B 

Babbitt  v.  Bennett,  54. 
Babcock   v.    Case,    237,    238, 

V.  Hawkins,    492. 

V.  Lawson,  238. 

V.  Orbison,  509. 
Babcock  &  Wilcox  Co.  v.  Moore,  430; 
Bach  V.  Smith,  265. 

V.  Tuch,  236,  237. 

V.  Tuck,   231. 
Bachelder  v.  Fiske,  381,  385 
Backus  V.  Fobes,  423. 

V.  Spaulding,  369. 
Bacon  v.  Bonham,  252. 

V.  Brown,  438. 

V.  Cobb,  421. 

V.  Eccles,   102. 

V.  Lee,  261. 

V.  Rupert,  521. 

V.  Sondley,  521. 
Badeau  v.  U.  S.,  544. 
Badger  v.  Phinney,  171,  172,  178» 

V.  Williams,  293. 
Badische,  etc.,  v.  Schott,  309. 
Baehr  v.  Wolf,  340. 
Baer  v.  Christian,  110. 
Bagley  v.  Peddle,  411. 

V.  Rolling-Mill  Co.,  463,  467. 
Bailey  v.  Ass'n,  318. 

V.  Austrian,  120. 

V.  Bamberger,  174. 

V.  Bensley,   399. 

V.  Bussing,  535. 

V.  Cornell,  517. 

V.  Day,  129. 

V.  Fox,  236. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


659 


Bailey  v,  Mogg,  264,  346. 

V.  Ogden,  84,   88. 

V.  Kailroad  Co.,  403. 

V.  Richardson,    374. 

V.  Walker,  110. 
Bally  V.  De  Crespigny,  474,  475. 
Bain  v.  Brown,  510. 
Bainbridge  v.  Firmstone,  107,  113. 

V.  Pickering,  157. 
Balrd  v.  Laevison,  470. 

V,  Mayor,  284. 

V,  Millwood,  273. 

V.  Sheelian,  290. 

V.  U.  S.,  132. 
Baker  v.  Baker,  95, 

V.  Burton,  264. 

V.  Codding,  80,  81. 

V.  Dening,  89. 

V.  Freeman,  500. 

V.  Gregory,   190. 

V.  Haskell,  55. 

V.  Holt,  29. 

V.  Humphrey,  217. 

V.  Jewell,  382. 

V.  Johnson,  474. 

V.  Kennett,  164,  168. 

V.  Lauterbach,  79,  91,  96. 

V.  Lever,  238. 

V.  Lovett,  152,  154. 

V.  Maxwell,  237. 

V.  Morton,  240,  241. 

V.  Railroad  Co.,  117. 

V.  Rockabrand,  223. 

V.  Stackpole.  439. 

V.  Stone,  178. 

V.  Wainwright,  74. 
Balch  V.  Patten,  537. 
Baldey  v.  Parker,  99. 
Baldock  v.  Atwood,  65. 
Baldwin  v.  Barrows,  198. 

V.  Bricker,  198. 

V.  Dunton,  180. 

V.  Emery,  358. 

V.  Hiers,  67,  68. 

V.  Hutchison,  241. 

V.  Leonard,  521. 

V.  Rosier,  162. 

V.  Steamship  Co.,  540. 

V.  Timber  Co.,  244. 

V.  Walker,  374. 

V.  Williams,  100. 
Baldy  v.  Stratton,  300. 
Balfour  v.  Davis,  271. 


Ball  V.  Dunsterville,  53,  500. 

V.  Mannin,  179. 
Ballard  v.  Cheney,  409. 

V.  Insurance  Co.,  483. 
Ballinger  v.  Bourland,  274. 
Ballou  V.  March,  135. 

V.  Talbot,  517. 
Baltimore   Baseball    C.    &   E.    Co.   v. 

Pickett,  400. 
Baltimore  Fire  Ins.  Co.  v.  McGowan, 

425. 
Baltimore  &  O.  R.  Co.  v.  Brydon,  460. 
Baltimore  &  O.  S.  W.  R.  Co.  v.  Voight, 

320. 
Baltimore  &  P.  S.  Co.  v.  Atkins,  517. 
Baltimore  &  S.  R.  Co.  v.  Faunce,  543. 
Balue  v.  Taylor,  58.  225,  237. 
Banchor  v.  Mansel,  329,  345,  346. 
Bancroft  v.  Dumas,  437. 
Bane  v.  Detrick,  240-242. 
Bane's  Case,  123. 
Bangs  V.  Dunn,  284. 

V.  Hornick,  279. 
Bankhead  v.  Alloway,  218. 
Bank  of  Australia  v.  Breillat,  324. 
Bank   of  British   America   v.   Cooper, 

393. 
Bank  of  Chillicothe  v.  Dodge,  207. 
Bank  of  Columbia  v.  Hagner,  28,  451. 

v.  Patterson,  192. 
Bank  of  Commerce  v.  Bank,  481. 

V.  Bogy,  367, 
Bank  of  Genesee  v.  Bank,  481. 
Bank  of  Ireland  v.  Evans  Charities, 

192. 
Bank  of  Limestone  v.  Penick,  481. 
Bank  of  Monroe  v.  Gifford,  435. 
Bank  of   New   Hanover  v.    Bridgers, 

122. 
Bank  of  New   Orleans  v.  Matthews, 

148. 
Bank  of  North  America  v.   Wheeler, 

493. 
Bank  of  U.  S.  v.  Dandridge,  192. 

V.  Daniel,  206,  226. 

V.  Owens,  261,  262. 
Banks  v.  Everest,  514. 

V.  Flint,  274. 

V.  Werts,  269. 
Bannerman  v.  White,  213. 
Bannon  v.  Aultman,  393. 
Banorgee  v.  Hovey.  58,  478. 
Banton  v.  Shorey,  76. 


560 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Bantz  V.  Bantz,  17. 
Barbee  v.  Barbee,  390. 
Barber  v.  Brown,  542. 
Barbour  v.  Barbour,  93,  304. 
Barclay  v.  Pearson,  280,  337,  338. 
Bardwell  v.  Purringtou,  150. 
Barham  v.  Bell,  517. 
Barbite's  Appeal,  17. 
Baring  v.  Peirce,  513. 
Barker  v.  Barker,  298,  300. 

V.  Critzer,  119. 

V.  Dinsmore,  200,  235. 

V.  Hibbard,  156. 

V.  Insurance  Co.,  519. 
Barkley  v.  Tarrant,  394. 
Barlow  v.  Lambert,  397. 

V.  Robinson,   168. 
Barnaby  v.  Barnaby,  154. 
Barnard  v.  Campbell,  239. 

V.  Coffin,  511. 

V.  Iron  Co.,  236. 

V.  Kellogg,  400. 

V.  Lee,  409. 

V.  Simons,  123. 
Barnes  v.  Barnes,  54,  155. 

V.  Brown,  340,  486. 

V.  Gidds,  493. 

V.  Hedley,  137,  142. 

V.  Insurance  Co.,  357,  422. 

V.  Morrison,  259. 

V.  Scott,  300. 

V.  Shoemaker,  199. 

V.  Smith,  279,  280,  343. 

V.  Strong,  298. 

V.  Toye,  157,  159. 
Barnet  v.  Smith,  436. 
Barnett  v.  Barnett,  180,  231,  393. 

V.  College,  119,  450. 

V.  Glutting,  514. 

V.  Warren,  537. 
Barney  v.  Forbes,  389. 

V.  Grover,  369. 

V.  Newcomb,  406. 
Barons  v.  Brown,  204. 
Ban-  V.  Gibson,  202. 

V.  Kimball,  235. 

V.  Schroeder,  527. 
Barrett  v.  Buxton,  186. 

V.  Dodge,  346. 

V.  Forney,  94. 

V.  McAllister,  83,  97. 
Barrle  v.  Earle,  237. 
Barringer  v.  Ryder,  126. 


Barron  v.  Porter,  368. 

V.  Tucker,  286. 

V.  Vandvert,  129,  130. 
Barrows  v.  Cushway,  525. 
Barr's  Adm'x  v.  Church,  274. 
Barry  v.  Capen,  287. 

V.  Crosky,  231. 

V.  Page,  517. 

V.  Ransom,  392. 
Bartholomew  v.  Dighton,  154. 

V.  Jackson,  18,  137,  138,  548. 
Bartle  v.  Coleman,  337. 
Bartlett  v.  Bailey,  174. 

V.  Blanchard,  487. 

V.  Collins,  342,  345,  346. 

V.  Cowles,  172. 

V.  Insurance  Co.,  71. 

V.  Mystic  River  Corp.,  78. 

V.  Remington,  394. 

V.  Robbins,  415. 

V.  Telegraph  Co.,  320. 

V.  Tucker,  517. 

V.  Wyman,  127. 
Barton  v.  Benson,  258. 
Barwick  v.  Bank,  523. 
Basket  v.  Moss,  283. 
Bass  V.  Patterson,  272. 
Bassett  v.  Bassett,  448. 

V.  Brown,  238. 

V.  Camp,  103. 

V.  Hughes,  356-358. 
Batavian  Bank  v.  North,  240. 
Bate  V.  Payne,  535. 
Bateman  v.  Butler,  70. 
Bates  V.  Babcock,  75. 

V.  Ball,  186. 

V.  Childers,  45. 

V.  Lumber  Co.,  365. 

V.  Railroad  Co.,  53. 

V.  Sandy,  125. 

V.  Townley,  535. 
Batlzen  v.  Nicolay,  518. 
Batsford  v.  Every,  267. 
Batterman  v.  Pierce,  393. 
Battle  V.  McArthur,  132. 
Battles  V.  Fobes,  55. 
Baudouine  v.  Grimes,  526. 
Baugh  V.  Baugh,  494. 
Baughman  v.  Gould,  216. 
Baum  V.  Baum,  303. 

V.  Du  Bois,  500. 
Bausman  v.  Guarantee  Co.,  435. 
Bavington  v.  Clarke,  152. 


V.  Techlenberg, 


Baxter  v.  Aubrey,  494. 

V.  Billings,  476. 

V.  Burtield,   378. 

V.  Camp,  354. 

V.  Portsmontli,   181. 
Bay  V.  Williams,  35(>-358. 
Bayard  v.  McLane,  297. 
Bay  City  Bank  v.  Lindsay,  536, 
Bayler  v.  Com.,  GO. 
Bayley  v.  Homan,  491. 

V.'  Taber,  335. 
Baylies  v.  Fettj^olace,  475. 
Baylis  v.  Dinely,  153. 
Bayne  v.  U.  S.,  541. 

V.  Wiggins,  88. 
Bayview  Brewing  Co. 

470. 
Beach  v.  Churcb,  37. 

V.  Hotcbkiss,  382. 

V.  Mulliu,  430. 
Beadles  v.  Bless,  276. 

V.  McElratb,  279,  390. 
Beal  V.  Cbase,  309. 

V.  Polhemus,  287. 
Beals  V.  See,  183. 
Beaman  v.  Buck,  95. 
Beaman's  Adm'r  v.  Russel,  70. 
Bean  v.  Atwater,  452. 

V.  Burbank,  35,   119. 

V.  Clark,  42. 

V.  Mining  Co.,  519. 

V.  Proseus,  471. 

V.  Simpson,  368. 
Bearce  v.  Barstow,  274. 
Beard  v.  Beard,  544. 

V.  Bliley,  224,  234. 

V.  Campbell,  223. 

V.  Horton,  534. 
Beardsley  v.  Hotcbkiss,  161,  162. 

V.  Knigbt,  52,  208. 

V.  Morgner,  366. 
Beasley  v.  Beasley,  185. 
Beattie  v.  Hilliard,  389. 
Beatty  v.  Lumber  Co.,  456. 
Beatty's  Estate  v.  College,  119. 
Beauchamp  v.  Winn,  401. 
Beaumont  v.  Brengeri,  101,  103. 

V.  Greatbead,  486. 

V.  Reeve,  109,  301,  334. 
Beaupre  v.  Telegraph  Co.,  42. 
Beaver  v.  Fulp,  130. 
Becbtel  v.  Cone,  94,  466. 
Beck  V.  Haas,  437,  438. 

Clakk  Cont.(2d  Ed.)— 36 


CASES   CITED.  50J 

[The  figures  refer  to  pages.] 

Becker  v.  Boon,  440. 

V.  Mason,  177. 

v.  AA^iterworks,  352. 

Beckham  v.  Drake,  517. 

Beckwith  v.  Butler,  i80. 

v.  Cheever,  22. 

V.  Frisbie,  244. 

v.  Talbot,  88. 
Beck   &   Pauli   Lithographing   Co.    v. 

Elevator  Co.,  410. 
Beddoe's  Ex'r  v.  Wadsworth,  375. 
Bedier  v.  Reaume,  23V. 
Bedinger  v.  Whittamore,  92. 
Beebe  v.  Johnson,  135,  472. 
Beecham  v.  Smith,  384. 
Beecher  v.  Buckingham,  378. 

V.  Conradt,  452. 
Beekman  v.  Fletcher,  86. 
Beeler  v.  Young,  156,  158-160. 
Beer  v.  Aultman-i'aylor  Co.,  389. 
Beeston  v.  Caller,  430. 
Begbie  v.  Sewage  Co.,  257,  337. 
Behaly  v.  Hatch,  441. 
Behl  V.  Schuett,  242. 
Behn  v.  Burness,  210,  464-466. 
Behrensmeyer  v.  Kreitz,  147. 
Beidman  v.  Goodell,  503. 
Beiler  v.  Devall,  81. 
Beitenman's  Appeal,  268. 
Beith  V.  Beith,  247. 
Belden  v.  Hann,  481. 
Belding  v.  Smythe,  340. 
Belding    Bros.    &   Co.    v.    Frankland, 

222. 
Belfast  &  M.  L.  R.  Co.  v.  Unity,  21. 
Belknap  v.  Bank,  480. 

V.  Bender,  69. 
Bell  V.  Bank,  55. 

V.  Bruen,  403. 

V.  Campbell,  340. 

V.  Cunningham,  509. 

V.  Dagg,  469. 

V.  Eaton,  223. 

V.  Ellis,   222. 

V.  Gardiner,   543. 

V.  Hewitt's  iix'rs,  78. 

V.  Hoffman,  464. 

V.  Keepers,  236,  237. 

V.  McConnell,  302. 

V.  Mahin,  269,  484. 

V.  Teague,  520. 
Bellas  V.  Hays,  409. 
Beiler  v.  Block,  515. 
Belleville  Sav.  Bank  v.  Bornman,  436. 


562 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Belleville  Sav.  Bank  v.  Winslow,  380. 
Bellows  V.  Sowles,  66,  125. 
Bell's  Adm'r  v.  Huggins'  Adm'rs,  471. 
Bell's  Gap  R.  Co.  v.  Christy,  504. 
Belote  V.  Henderson,  246. 
Belz  V.  Keller,  225. 
Beman  v.  Wessels,  269. 
Bender  v.  Been,  129. 
V.  Sampson,  130. 
Bendemagle  v.  Cocks,  493. 
Benecke  v.  Haebler,  445. 
Benedict  v.  Bachelder,  270. 
V.  Cowden,  4S0. 
V.  Miner,  480,  481. 
Benescli  v.  Weil,  235.  239. 
Benge  v,  Hiatt's  Adm'r,  355. 
Benicia  Agricultural  Works  v.  Estes, 

390. 
Beninger  v.  Corwin,  224. 
Benjamin  v,  Benjamin,  501,  513. 

V.  Dockbam,  499. 
Benneban  v.  Webb,  406. 
Benneson  v.  Aiken,  54. 
Bennett  v.  Ass'n,  346. 
V.  Brumfitt,  89. 
V,  Davis.  154. 
V.  Ford,  244. 
V.  Hibbert,  147. 
V.  Hill,  492. 
V.  Huil,  98. 
V.  Judson,  229. 
V.  Morse,  134. 
V.  Pierce,  470. 
Bennitt  v.  The  Guiding  Star,  511. 
Benoit  v.  Inhabitants,  525. 
Bensley  v.  Bignold,  261,  265. 
Benson  v.  Markoe,  207. 
V.  Monroe,  541. 
V.  Shotwell,  426. 
Bent  V.  Cobb,  90. 

V.  Manning,  159. 
Bentall  v.  Burn,  103. 
Bentinck  v.  Franklin,  297. 
Bentley  v.  Robson.  242. 
Benton  v,  Ass'n,  32. 
V.  Holland,  496. 
V.  Pratt,  231,  350. 
Benyon  v.  Cook,  252. 
Berdell  v.  Bissell,  132. 
Bergen  v.  Frisbie,  286. 
Bergenthal  v.  Fiebrantz,  543. 
Bergin  v.  Williams,  389. 
Bergson  v.  Insurance  Co.,  365. 
Berkeley  v.  Hardy,  521. 


Berkmeyer  v.  Kellerman,  248. 
Berkshire  Woolen  Co.  v.  Proctor,  398. 
Bernard  v.  Taylor,  276.  339. 
Bernhardt  v.  Walls,  100. 
Bernshouse  v.  Abbott,  522. 
Berry  v.  Bacon,  58. 

V.  Bakeman,  223. 

V.  Brown,  520. 

V.  Carter.  295. 

V.  Doremus,  80. 

V.  Hall,  116. 

V.  Nail,  440. 

V.  Whitney,  226. 
Bersch  v.  Insurance  Co.,  277. 
Berti-and  v.  Byrd,  52. 
Besant  v.  Wood,  304. 
Besse  v.  Dyer,  38. 
Best  V.  Davis,  96. 

V.  Strong,  298. 
Bestor  v.  Hickey,  167. 

V.  Hickie,  244. 

V.  Wathen,  288. 
Bethlehem  v.  Annis,  360,  364. 
Bethlehem  Borough  v.  Fire  Co.,  549. 
Betterbee  v.  Davis,  441. 
Bettini  v.  Gye,  458,  465. 
Beveridge  v.  Rawson,  503. 
Beverley's  Case,  179,  185. 
Bevier  v.  Covell,  274. 
Bevin  v.  Insurance  Co.,  277. 
Beymer  v.  Bonsall,  522. 
Bibb  V.   Allen,   65,  84,    118,  279,  280, 

342,  508. 
Bice  V.  Building  Co.,  72. 
Bickel  V.  Sheets,  330. 
Bickford  v.  Bank,  519. 

V.  Cooper,  405. 
Bicknall  v.  Waterman,  436. 
Bicknell  v.  Bicknell,  158. 
Bidault  V.  Wales,  222. 
Biddel  v.  Brizzolara,  496. 
Bieme  v.  Ray,  116. 
Biest  V.  Shoe  Co.,  78. 
Bigelow  V.  Bigelow,  1 12. 

V.  Burnham.  346. 

V.  Denison,  505. 

V.  Grannls,  167. 

V.  Kinney,  153,  166,  171,  172. 

V.  Stilphen,  482. 
Bigger  v.  Bovard,  463, 
Biggers  v.  Owen,  39. 
Biggs  v.  Barry,  222. 
Bignall  v.  Gould.  412. 
Bilbie  v.  Lumley,  544. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


563 


Bill  V.  Bament,  82. 

V.  Porter,  430,  478. 
Billings  V.  Morrow,  505. 
Billings'  Appeal,  477. 
Billingsley  v.  Harris,  57. 
Billington  v.  Cabill,  82. 
Billiot  V.  Robinson,  441. 
Billmeyer  v.  Wagner,  487. 
Binford  v.  Bruso,  229. 
Bingham  v.  Bingham,  201,  207. 

V.  Madison,  204. 
Birchcll  v.  Neaster,  96. 
Bird  V.  Church,  460. 

V.  Mnnroe,  82,  91,  105. 

V.  Randall,  380. 

V.  Swain,  1G7. 
Birdsall  v.  Clark,  511. 

V.  Russell,  480. 
Birkbeck  v.  Kelly,  94. 
Birkett  v.  Chatterton,  264. 
Birkhauser  v.  Schmitt,  206,  207,  544. 
Birkmyr  v.  Darnell,  68. 
Birks  V.  French,  266. 
Birmingham   Warehouse,   etc.,   Co.   v. 

Land  Co.,  225. 
Bisbee  v.  McAllen,  261,  263. 
Bishop  V.  Eaton,  24. 

V.  Holcomb,  367. 

V.  Palmer,  136,  308,  S23,  334. 

V.  Small,  227. 
Bissell  V.  Heyward,  441. 

V.  Spring  Valley  Tp.,  192. 
Bixby  V.  Dunlap,  850. 

V.  Moor,  17,  322,  323. 
Bi>!e  V.  Dickason,  542. 
Black  V.  Black,  233. 

Y.  Cord,  60. 

V.  De  Camp,  422. 

V.  Foljambre,  247. 

V.  Walker,  470. 

V.  Woodrow,  477. 
Blackburn  v.  Hayes,  271. 

V.  Mann,  72. 

V.  Mason,  400. 

V.  Reilly,  4.55. 

V.  Smith,  545. 
Blackett  v.  Assurance  Co.,  400. 
Blackie  v.  Clark,  249. 
Blackman  v.  Dowling.  471. 
Blacknall  v.  Parish,  500. 

V.  Rowland.  228. 
Blackstone  v.  Buttermore,  526,  527. 
Blackwell  v.  Hamilton,  52. 

V.  Willard,  147. 


Blades  v.  Free,  37,  528. 

Blagborne  v.  Hunger,  419,  426. 

Blagen  v.  Thompson,  487. 

Blaine    v.    Publishers    George    Knapp 

A:  Co.,  433. 
Blaisdell  v.  Ahem,  299. 
Blake  v.  Cole,  78. 

V.  Coleman,  389. 

V.  Elizabeth,  149. 

V.  Insurance  Co.,  27. 

V.  Peck,  121. 

V.  Stump,  399. 

V.  Voight,  78. 
Blakely  v.  Sousa,  257,  476. 

V.  Susa,  378. 
Blakeney  v.  Goode,  101. 
Blakstone  v.  Buttermore,  527. 
Blalock  V.  Phillips,  435,  549. 
Blanchard  v.  Russell,  344. 

V.  Trim,  426. 
Blanding  v.  Sargent,  80. 
Blank  v.  Dreher,  68. 

V.  Nohl,  304. 
Blaskower  v.  Steel,  496. 
Blatchford  v.  Preston,  282. 
Blattenberger  v.  Holman,  460. 
Bleaden  v.  Charles,  535. 
Bledsoe  v.  Irvln,  380. 
Blewitt  V.  Boorum,  56,  392. 
Bliss  V.  Lawrence,  284,  285. 

V.  Perryman,  141. 

V.  Railroad  Co.,  179. 
Bllven  V.  Lydecker,  274. 

V.  Screw  Co.,  398. 
Blood  V.  Enos,  419. 

V.  Goodrich,  426,  506. 

V.  Wilson,  431. 
Bloom  V.  Hazzard,  284. 

V.  Richards,  260. 
Bloomer  v.  Bernstein,  456. 

V.  Henderson,  370. 

V.  Nolan,  158,  1U9. 
Bloss  V.  Bloomer,  257. 
Blossom  V.  Railroad  Co.,  22. 
Blount  V.  Harvey,  376. 
Blczram  v.  Sanders,  459. 
Bloxsome  v.  Williams,  326. 
Bluestone  Coal  Co.  v.  Bell,  201. 
Blymer  v.  Bonsall,  522. 
Blythe  v.  Railroad  Co.,  429. 
Boardman  v.  Cutter,  100. 

V.  Hayne,  369. 

V.  Spooner,'89,  400. 

V.  Taylor,  273,  274. 


564 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Board,  145. 
V.   Greenbaum, 


Boardman  v.  Thompson,  298. 

Board    of    Com'rs    of    Bartholomew 

County  T.  Jameson,  208. 
Board  of  Com'rs  of  Delaware  County 

V.  Lock  Co.,  3G5. 
Board  of  Education  v, 
Board   of   Education 

192. 
Board  of  Education  v.  Townsend,  474. 
Boast  V.  Firth,  476,  550. 
Bobbitt  V.  Insurance  Co.,  214. 
Bobe's   Heirs   v.    Stickney,   437,   439, 

440. 
Bock  V.  Perkins,  40o. 
Bocock  V.  Pavey,  511. 
Bodine  v.  Insurance  Co.,  511. 
Bofinger  t.  Tuyes,  392. 
Boggs  V.  Curtin,  415. 

V.  Wann,  112. 
Bogie  V.  Bogie,  53. 
Bohanan  v.  Pope,  356. 
Bohart  v.  Oberne,  514. 
Bohn  Mfg.  Co.  v.  Hollis,  314,  315. 
Boit  V.  :Maybin,  23. 
Boland  V.  O'Neil,  303. 
BoUes  V.  Carli.  349. 

V.  Sachs,  390,  448. 
Bollin  V.  Hooper,  270. 
Bellman  v.  Burt,  455. 
Bolton  V.  Lambert,  29. 
Bomar  v.  Rosser,  233. 
Bommer  v.  Mfg.  Co.,  504. 
Bond  V.  Bond,  180. 
Bonelli  v.  Blakemore,  76. 
Bonnewell  v.  Jenkins,  29. 
Bonney  v.  Morrill,  394. 
Bonsfield  v.  Wilson,  337. 
Bontelle  v.  Melendy.  270, 
Bonwell  v.  Howes,  302. 
Boody  V.  McKenney,  168,  172,  173. 
Book  V.  Mining  Co.,  96. 
Bool  v.  Mix,  150,  154,  164,  165,  170. 
Boone,  In  re,  302. 
V.  Chiles,  300. 
V.  Eyre,  457. 
Booske  V.  Ice  Co.,  45. 
Booth  V.  Bank,  262. 

V.  Mill  Co.,  473,  487. 
V.  Powers,  480,  483. 
V.  Tyson,  453. 
Boothbay  v.  Giles,  52. 
Boothby  v.  Scales,  464. 
Boothe  V.  Fitzpatrick,  138,  139. 
Boozer  v.  Teague,  94. 


Borchsenius  v.  Canutson,  71. 
Borden  v.  Railroad  Co.,  205. 
Bordentown  Tp.  v.  Wallace,  151. 
Borland  v.  Guffy,  28. 
Bosdeu  V.  Sir  .John  Thenne,  138. 
Bosley  v.  Shanner,  241. 
Bostick  V.  Blades,  303. 

V.  McClaren,  293. 
Boston  V.  Farr,  68. 
Boston   Ice   Co.    v.   Potter,    199,   349, 

549. 
Boston   Rubber   Co.    v.   Wringer  Co., 

492. 
Boston    Safe-Deposit  &   Ti-ust   Co.   v. 

Water  Co.,  352. 
Boston  &  M.  R.  R.  Co.  v.  Bartlett,  31, 

35. 
Boston  &  S.  Glass  Co.  v.  Boston,  244. 
Bostwick  V.  Bryant,  367. 

V.  Insurance  Co.,  197,  236. 

V.  Leach,  76. 
Bothwell  V.  Brown,  294. 
Bouchell  V.  Clary,  156,  160. 
Boucher  v.  Lawson,  345. 
Boulder   Valley    D.    M.    &    M.    Co.    v. 

Farnham,  93. 
Boulton  V.  Jones,  199. 
Bour  V.  Kimball,  429. 
Bourlier  v.  Macauley,  350. 
Bourne  v.  Mason,  352. 
Boutelle  v.  Smith,  307. 
Bowdell  V.  Parsons,  448. 
Bowditch  V.  Insurance  Co.,  2G0,  341. 
Bowdoin  v.  Hammond,  271. 
Bowdoin  College  v.  Merrett,  247. 
Bowe  V.  Bowe,  249. 

V.  U.  S.,  145. 
Bowen  v.  Hall.  350,  512. 

T.  Railroad  Co.,  422. 

V.  Tipton,  22,  123. 
Bower  v.  Blessing,  21. 

V.  Fenn,  230. 

V.  Stone  Co.,  366,  367. 
Bowerman  y.  Rogers,  509. 
Bowers  v.  Thomas,  198. 
Bowery  Nat.  Bank  v.  Wilson,  284. 
Bowes  V.  Shaud,  410,  462,  464. 
Bowker  v.  Hoyt,  453. 

V.  Lowell,  242. 
Bowling  V.  Blum,  292. 

V.  Taylor,  316. 
Bowman  v.  Coffroth,  286. 

V.  Neely,  273. 

V.  Patrick,  116,  236. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


565 


Bowman  v.  Taylor,  58. 
Bowser  v.  Bliss,  o09,  olO. 

v.  Patrick,  406. 
Boyce  v.  Tabb,  346. 
Boyce's  Adm'r  v.  Smith,  180. 
Boyd  V.  De  La  Montagnie,  249. 

V.  Dobsou,  506. 

V.  Eaton,  324. 

V.  Gunnison,  408. 

V.  Hanson.  342. 

V.  Hind,   133. 

V.  Hitchcock,  131. 

V.  Lee,  149. 

V.  State,  146. 
Boydell  v.  Drummond,  88. 
Boyden  v.  Boyden,  161,  168,  175. 
Boyer  v.  Berryman,  182,  1S3. 

V.  Bolender,  534. 
Boyett  V.  Potter,  537. 
Boylan  v.  Railroad  Co.,  20. 
Boyle  v.  Adams,  290. 
Boylston  v.  Bain,  274. 
Boynton  v.  Ball,  493. 

V.  Hubbard,  252. 

V.  Moulton,  496. 

V.  Page,  266,  267. 

V.  Veazie,  103. 
Boy  son  v.  Thorn,  350. 
Bozeman  v.  Browning,  151. 
Brackett  v.  Blake,  284,  365. 

V.  Griswold,  232. 

V.  Mountfort,  481. 

V.  People,  494. 
Bradbume  v.  Botfleld,  384. 
Bradbury  v.  Place,  182. 
Bradford  v.  Chicago,  244. 

V.  Foster,  33. 

V,  Greenway,  190. 

V.  Koulston,  139. 

V.  Williams,  466. 
Bradlaugh  t.  Xewdegate,  297. 
Bradley  v.  Ballard,   194. 

V.  Irish,  245. 

V.  King.  455. 

V.  Owsley,  94. 

V.  Pratt,  160. 

V.  Rea,  270,  398,  469. 

V.  Richardson,  516. 
Bradner  v.  Roffsell.  460. 
Bradshaw  v.  Bradbury,  402. 

V.  Davis.  492. 

V.  Van  "Winkle.  177. 
Bradstreet  v.  Baker,  519. 


Brady  v.  Evans,  233. 

V.  Finn,  228. 

V.  Horvath,  337. 
Bragg  V.  Danielson,  419. 

V.  Wetzel,  380. 
Braitch  v.  Guelick,  323. 
Brakefield  v.  Anderson,  91,  96. 
Braley  v.  Kelly,  89. 

v.  Powers,  230. 
Braman  v.  Bingham,  56. 
Brandon  v.  Brown,  173. 
Brands  v.  De  Witt,  74. 
Brandt  v.  Railroad  Co.,  441. 

V.  Turner,  464. 
Branson  v.  Kitchenman,  110. 
Brant  v.  Johnson,  69. 
Brantley  v.  Wolf,  178. 
Brauer  v.  Shaw,  26,  27,  34. 
Braun  v.  Keally,  264,  343. 
Brawley  v.  U.  S.,  120. 
Brawner  v.  Franklin,  172. 
Bray  v.  Kettell,  517. 
Brayshaw  v.  Eaton,  159. 
Brazee  v.  Bryant,  266. 
Bream  v.  Dickerson,  374. 
Breckenridge  v.  Lewis,  514. 
Breckem'idge's  Heirs  v.  Ormsby,  163, 

1S2. 
Breckinridge  v.  Crocker,  86. 
Bredin's  Appeal,  323. 
Breed  v.  Judd,  156,  157. 
Breen  v.  Moran,  396,  469. 
Breese  v.  Telegraph  Co.,  320. 
Breitling  v.  Marx,  53. 
Brengle  v.  Bushey,  59. 
Brennan  v.  Chapin,  19. 

v.  Clark,  412. 
Brent  v.  Cook,  398. 

V.  Green,  515. 
Bresee  v.  Stanly,  167. 
Bressey's  Adm'r  v.  Gross,  179. 
Bret  v.  J.  S.  &  Wife,  108. 
Bretto  v.  Levine,  393. 
Brewer  v.  Horst  &  Lackmund  Co.,  88. 

V.  Marshall,  375,  376. 

V.  Mauerer,  357. 

V.  Sparrow,  539. 
Brewster  v.  Banta,  270. 

V.  Edgerly,  413. 

V.  Hatch,  216. 

V.  Leith,  103. 
Breyfogle  v.  Walsh,  237. 
Breyman  v.  Railroad  Co.,  407. 


566 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Brice  v.  Bannister,  3G8. 

V.  King,  35G. 
Brick  Pi-esbyterian  Churcti  v.  City  of 

New  Yorlj,  474. 
Bridges  v.  Sticliney,  487. 
Briggs  V.  Boyd,  540. 

V.  Latliam,  110. 

V.  McCabe,  153. 

V.  Sizer,  15,  28. 

V.  Tillotson,  117. 

V.  U.  S.,  96. 
Brigham  v.  Carlisle,  488. 

V.  Fayerweattier,  183. 

V.  Herriclf,  394. 

V.  Palmer,  389,  507. 
Brill  V.  Rack,  237. 

V.  Tuttle,  368. 
Brinker  v.  Scheunemann,  343. 
Brinkley  v.  Swicegood,  485. 
Brinton  v.  Van  Cott,  93. 
Brisbane  v.  Dacres,  541,  544. 
Briscoe  v.  Reynolds,  480,  483. 
Bristol  V.  Braidwood,  229. 
Bristol  Aerated  Bread  Co.  v.  Maggs, 

28. 
Bristol  Sav.  Bank  v.  Stiger,  391. 
Bristow  V.  Lane,  356. 

V.  Sequeville,  345. 
British   Columbia   &  Vancouver's  Is- 
land Spar,  Lumber  &  Saw-Mill  Co. 
V.  Nettleship,  487. 
British  Wagon  Co.  v.  Lea,  360,  364. 
British  &  Am.  Tel.  Co.  v.  Colson,  26, 

27. 
Britt  V.  Hays,  485. 
Brittain  v.  Aingier,  87. 

V.  Daniels,  58. 

V.  Lloyd,   137. 

V.  Rossiter,  92. 
Britton  v.  Dierker,  480. 

V.  Phillips,  30. 

V.  Turner,  462. 
Broadwater  v.  Darne,  186. 
Broadwell  v.  Getman,  80. 
Brockway  v.  Allen,  520. 

V.  Express  Co.,  344. 

V.  Frost,  86. 

V.  Harrington,  116. 

V.  Mulliu,  513. 
Brogden  v.  Marriott,  276. 

V.  Railroad  Co.,  22,  23,  25. 
Bronson  v.  Herbert,  21. 
Bronson   Agricultural  &  B.   Ass'n  v. 
Ramsdell,  277. 


Brooke  v.  Filer,  147. 

V.  Logan,  305. 
Brooker  v.  Scott,  155. 
Brooklyn  Bank  v.  De  Grauw,  442. 
Brooks  V.  Avery,  272. 

V.  Ball,  112,  115. 

V.  Berryhill,  245. 

V.  Hamilton,  216,  218. , 

V.  Martin,  217,  337. 

V.  Stuart,  381. 

V.  Wage,  121. 

V.  White,  131. 

V.  Wichita,  413. 
Brosnan  v.  McKee,  75. 
Brothers  v.  Bank,  179. 
Broumel  v.  Rayner,  454. 
Brower  v.  Callender,  240. 

v.  Fisher,  179. 

V.  Goodyer,  222. 
Brown  V.  Adams,  111. 

V.  Bank,  89,  122,  273,  274,  293. 

V.  Benight,  381. 

V.  Bennett,  141. 

V.  Eigne,  297. 

V.  Brown,    54^-56,    180,    274,    283, 
285,  303. 

V.  Browning,  266,  343. 

V.  Burbank,  248,  249. 

V.  Burns,  437. 

V.  Byi-ne,  397. 

V.  Caldwell,  154. 

V.  Combs,  516. 

V.  Duncan,  261. 

V.  Dysinger,  441. 

V.  Everett-Ridley-Ryan  Co.,  341. 

V.  Everhard,  420,  426. 

V.  Farnham,  133. 

V.  Finance  Co.,  343. 

V.  Foster,  400,  432. 

V.  Fowler,  87. 

v.  Gardner,  272. 

V.  Hoag,  94. 

V.  Hodgson,  535. 

V.  Johnson,  513. 

V.  Jordhal,  53. 

V.  Kinsey,  301. 

V.  Latham,  108. 

V.  Leach,  228. 

V.  Levy,  205. 

V.  Lumber  Co.,  419,  420. 

v.  McCreight,  294. 

V.  McCune,  177. 

V.  McKee,  383. 

V.  Markland,  395. 


Brown  v.  Miles,  182. 

V.  Miller,  528. 

V.  Neally,  257. 

V.  Norman.  23G,  237. 

V.  Odill,  304,  448. 

V.  Peck,  246. 

V.  Piukham,  48L 

V.  Pitcairn,  236. 

V.  Pollard,  92,  93. 

V.  Railway  Co.,  29,  553. 

V.  Keiman,  522. 

V.  Rice,  21. 

V.  Road  Co.,  543. 

V.  Safe-Deposit  Co.,  409,  410. 

V.  Savings  Union,  33. 

V.  Speyers,  289. 

V.  Stillmau,  357. 

V.  Sutton,  94. 

V.  Telegraph  Co.,  320. 

V.  Trust  Co.,  65. 

V.  Tuttle,  549. 

V.  Vandyke,  273. 

V.  Weldon,  470. 

V.  AVheeler,  218. 

V.  Wheelock,  152. 

V.  Wiggin,  516. 
Brown  Chemical  Co.  v.  Atkinson,  396. 
BroAvnell  v.  Harsh,  121. 

V.  Winnie,  481. 
Browning  v.  Beriy,  83. 

V.  Crouse,  492. 

V.  Insurance  Co.,  215, 

V.  Morris,  341. 

V.  Parker,  91. 
Brownlee  v.  Lowe,  129. 
Brown  University  v.  College,  145. 
Brown   &  Haywood   Co.   v.   Wunder, 

100. 
Brua's  Appeal,  278. 
Bruce  v.  Bishop,  21,  29,  41. 

V.  Lumber  Co.,  393. 

V.  Pearson,  29. 
Bruecher  v.  Port  Chester,  244. 
Bruen  v.  Marquard,  382. 
Brumby  v.  Smith,  473. 
Brummitt  v.  McGuire,  543. 
Brun  V.  Brun,  303. 
Brundage  v.  Port  Chester,  537. 
Brunnell  v.  Sawmill  Co.,  399. 
Brush  V.  Sweet,  299. 
Brunswick-Balke-Collender      Co.      v. 

Boutell,  520. 
Bryan  v.  Brazil,  130. 

V.  Foy,  130. 


CASES  CITED.  567 

[The  figures  refer  to  pages.] 

Bryan  v.  Reynolds,  285,  286. 

V.  Wash,  54. 

V.  Watson,  268. 
Bryant  v.  Booze,  26,  268. 

V.  Insurance  Co.,  219. 

V.  Isburgh,  4G4. 

V.  Moore,  513,  514. 

V.  Peck,  243,  245. 

V.  Pember,  469. 

V.  Richardson,  157. 
Bryson  v.  Haley,  330. 
Buchanan  v.  Bank,  343. 

V.  Hubbard,  168,  171. 

V.  Insurance  Co.,  276,  277. 

V.  Moran,  72. 

V.  Tilden,  355,  357. 
Buck  V.  Bank,  292. 

V.  Biddeford,  268. 

V.  Burk,  404. 

V.  Coward,  309. 
Buckey  v.  Buckey,  179. 
Buckingham  v.  Ludlum,  117,  118. 
Buckley  v.  Beardslee,  87. 

V.  Humason,  264. 
Buckner  v.  Anderson,  74. 

V.  Smith,  369. 
Budd  V.  Hiler,  538. 

V.  Rutherford,  293. 
Buel  V.  Miller,  426. 
Buell  V.  Chapin,  435. 
Buffalo  V.  O'Malley,  543. 
Buffalo  Barbwire  Co.  v.  Phillips,  487. 
Buffalo  E.  S,  R.  Co.  v.  Railroad  Co., 

474. 
Buffendeau  v.  Brooks,  333,  390. 
Buffington  v.  Gerrish.  239. 
Buford  V.  Tucker,  398. 
Bugbee  v.  Kendricken,  68. 
Bughman  v.  Bank,  222. 
Buhl  V.  Steph«ns,  97. 
Building  &  Loan  Ass'n  of  Dakota  v. 

Logan,  346. 
Bulkley  v.  Devine,  395. 

V.  Fishing  Co.,  193. 

V.  Landon,  137. 
Bull  V.  Bull,  494. 

V.  Hopkins,  494. 

V.  Rice,  271,  272. 
Bullion  &  Exch.  Bank  v.  Otto,  96. 
Bullitt  V.  Farrar,  230. 
Bullock  V.  Adams'  Es'rs,  409. 

V.  Lumber  Co.,  402, 

V.  Sprowls,  174. 

V.  Tschergi,  103. 


568 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Bullock  V.  Turnpike  Co.,  77. 
Bulow  V.  Goddard,  540. 
Bundy  v.  Newton,  297. 
Bunge  V.  Koop,  444. 
Bunker  v.  Hodgson,  474. 
Bunn  V.  Guy,  311. 

V.  Riker,  276. 

V.  Winthrop,  301. 
Bunneman  v.  Wagner,  71. 
Bui-bridge  y.  Fackler,  285,  287. 
Burch  V.  Breckenridge,  190,  191. 
BurcMeld  v.  Moore,  469,  479,  545. 
Burck  V.  Taylor,  365. 
Burden  Bank  v.  Phelps,  291. 
Burdett  v.  Williams,  167,  177. 
Burger  v.  Rice,  360. 

V.  Roelsch,  265. 
Burges  v.  Wickham,  395. 
Burgess  v.  Carpenter,  350. 

V.  Pollock,  180. 
Burgess  Sulphite  Fibre  Co.  v.  Broom- 
field,  120. 
Burghart  v.  Angerstein,  156,  157. 

V.  Hall,  157. 
Burke  v.  Adams,  54. 

V.  Allen,  185. 

V.  Miller,  389. 

V.  Railway  Co.,  20,  505. 

V.  Taylor,  116,  249. 
Burkett  v.  Moses,  364. 
Burkhardt  v.  School  Tp.,  475. 
Burkholder  v.  Casad,  54. 
Burkle  v.  Levy,  236. 
Burks  V.  Albert,  438. 
Burlen  v.  Shannon,  50. 
Burley  v.  Russell,  177. 
Burlingame  v.  Brewster,  480. 
Burlington    Lumber   Co.    v.    Lumber 

Co.,  197. 
Bum  V.  Carvalho,  367. 
Burnard  v.  Haggis,  177. 
Burnes  v.  Allen,  58. 

V.  Scott,  300,  392. 
Burnet  v.  Bisco,  110,  111,  119. 
Burnett  v.  Burnett,  54. 

V.  Orandall,  366. 

V.  McCluey,  53. 

V.  Telegraph  Co.,  268. 
Bumey's  Heirs  v.   Ludeling,  288. 
Burnham  v.  Kidwell,  179,  182,  183. 

V.  Mitchell,  180. 
Bums  V.  Dockray,  235. 

V.  Lane,  229. 

V.  Mahannah,  227. 


Burns  v.  Moore,  266,  267. 

V.  Real-Estate  Co.,  65,  426. 

V.  Smith,  154. 
Burns  &  Smith  Lumber  Co,  v.  Doyle, 

392,  393. 
Burr  V.  Beers,  357. 

V.  Sickles,  435. 

V.  Willson,  233. 
Burrell  v.  Highleyman,  99. 
Burrell's  Case,  225. 
Burrill  v.  Stevens,  222. 
Burritt  v.  Insurance  Co.,  214,  215. 
Burroughs  v.  Guano  Co.,  229. 
Burrows  v.  Ward,  19. 

V.  Wene,  236. 
Burt  v.  Meyer,  278. 

V.  Place,  338. 

V.  Quisenberiy,  252. 
Burtis  V.  Thompson,  444,  445. 
Burton  v.  Driggs,  538,  540. 

V.  Henry,  383. 

V.  Larkin,  356. 

V.  Leroy,  53. 

V.  Marshall,  188. 

V.  Shotwell,  32. 
Burwell  v.  Burgwyn,  50. 
Busby  V.  Bush,  395. 
Busch  V.  Wilcox,  223. 
Buschman  v.  Codd,  224,  230,  232. 
Bush  V.  Breinig,  186. 

V.  Brown,  246. 

V.  Holmes,  102. 

V.  Linthicum,  162,  165. 

V.  Merriman,  401. 

V.  Rawlins,  126. 
Bushnell  v.  Bushnell,  534. 
Bussing  V.  Rice,  239. 
Buswell  V.  Bicknell,  428. 
Butcher  v.  Krauth,  510. 
Butler  V.  Barnes,  375. 

v.  Breck,  151. 

V.  Burleson,  311. 

V.  Dinan,  92. 

V.  Duncan,  252. 

V.  Eschelman,  223. 

V.  Lee,  268. 

V.  Maples,  513. 

V.  Miller,  479. 

V.  Price,  497. 

V.  Wigge,  406. 
Butler's  Appeal,  221. 
Butler  &  Baker's  Case,  32,  55. 
Butterfleld  v.  Byron.  473. 

V.  Hartshorn,  423. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


569 


Butters  V.  Haughwout,  239. 
Buxton  V.  Lester,  41)0. 
Byers  v.  Chapin,  463. 
Byrd  v.  Bertrand,  422. 

V.  Hughes,  301. 
Byrne  v.  Cummings,  107,  471. 

V.  Tienhoven,  34. 
Byrnes  v.  Claffey,  437. 
Byxbie  v.  Wood,  365. 


Cable  V.  Foley,  244. 

V.  Insurance  Co.,  215. 
Cabot  V.  Cbrlstie,  229,  230. 

V.  Kent,  410. 
Cadman  v.  Markle,  95. 
Cadwallader  v.  West,  179,  249,  250. 
Cagney  v.  Cuson,  225. 
Cabin  V.  Bigelow,  68. 
Cain  V.  Heard,  500. 

V.  McGuire,  76. 

V.  Warford,  179. 
Cairnes  v.  Bleecker,  505. 
Caldwell  v.  Lay  ton,  404. 

V.  Myers,  468. 

V.  Scbool  Dist,  44. 

V.  Walters,  188. 

V.  Wentworth,  437. 
Calhoun  v.  Atchison,  etc.,  26. 

V.  Millard,  504. 

V.  Phillips,  266. 
California  Nat.  Bank  v.  Kennedy,  iy3. 
Calkins  v.  Chandler,  121-123. 
Callahan  v.  Stanley,  397. 
Callan  v.  McDaniel,  373. 
Oallanan  v.  Chapin,  91. 

V.  Edwards,  369. 
Calland  v.  Loyd,  541. 
Callis  V.  Day,  153,  168,  171. 
Callisber  v.  BiscbofEsheim,  122,  125. 
Callo  V.  Brouncker,  430. 
Camden  Iron  Works  v.  Fox,  410. 
Cameron  v.  Durkbeim,  289. 
Caminada  v.  Hulton,  280. 
Cammerer  v.  Muller,  304. 
Camp  V.  Camp,  74. 

V.  Telegraph  Co.,  320. 
Campanari  v.  Woodburn,  37. 
Campbell  v.  Clay,  423. 

V.  Com'rs,  364. 

V.  Floyd,  423. 

V.  Hillman,  524. 

V.  Holt,  496. 


Campbell  v.  Insurance  Co.,  215. 

V.  Jones,  56,  458. 

V.  Kubn,  185. 

V.  Moran  Bros.  Co.,  459. 

V.  Perkins,  176, 

V.  Potter,  489. 

V.  Kichardson,  276. 

V.  Segars,  264. 

V.  Stakes,  176,  177. 

v.  Thomas,  56. 

V.  Van  Houten,  197. 

V.  Young,  269. 
Campbell  Printing  Press  Co.  v.  Thorp, 

433. 
Campbell's  Estate,  In  re,  419. 
Canadian  Pac.  R.  Co.  v.  Telegraph  Co., 

289. 
Canajoharie  Bank  v.  Diefendorf,  335. 
Canal  Com'rs  v.  People,  406. 
Candee  v.  Telegraph  Co.,  320. 
Canedy  v.  Marcy,  207. 
Oannam  v.  Farmer,  189. 
Cannan  v.  Bryce,  330. 
Cannon  v.  Alsbury,  154. 

V.  Handley,  91. 

V.  Lindsey,  197. 

V.  Ryan,  266. 
Canon  v.  Grigsby,  483. 
Canterberry  v.  Miller,  404. 
Canton  Co.  v.  Railroad  Co.,  29. 
Canty  v.  Latterner,  366. 
Capehart  v.  Carradine,  223. 

V.  Rankin,  289. 
Capen  v.  Barrows,  416. 

V.  Insurance  Co.,  526. 
Caperton's  Adm'r  v.  Caperton,  404. 
Card  V.  Hope,  282. 
Cardell  v.  McNiel,  71. 
Cardwell  v.  McClelland,  224. 
Carew  v.  Rutherford,  317,  540. 
Carey  v.  Hess,  141,  142. 

V.  Mackey,  303. 

V.  Woods,  324. 
Carlill  V,  Smoke-Ball  Co.,  23,  30. 
Carlisle  v.  Campbell,  69,  90. 
Carlton  v.  Hulett,  237. 

V.  Railroad  Co.,  130. 
Carman  v.  Pultz,  441. 
Carmichael  v.  Buck,  515. 
Carnahan  v.  Bailey,  222. 
Carnegie  v.  Holt,  487. 

V.  Morrison,  355. 
Carney  v.  Carney,  94. 
Carnig  v.  Carr,  79. 


570 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Carolina  Interstate  Building  &  Loan 

Ass'n  V.  Black,  177. 
Carpenter  v.  Carpenter,  164,  180. 

V.  Comings,  73. 

V.  Galloway,  426. 

V.  Medford,  45. 

V.  Rodgers,  186. 

V.  Wriglit,  228. 
Carr  v.  Clougli,  164,  172. 

V.  Duval,  30,  31,  36. 

V.  McCarthy,  78. 
Carrell  v.  Potter,  162,  167. 
Carrier  v.  Sears,  182,  185. 
Carrl  v.  Snyder,  310. 
Carrol  v.  Bleucow,  189. 
Carroll  v.  People,  23-6. 

V.  Tyler,  284. 
Carroll  Co.  Sav.  Bank  v.  Strother,  272. 
Carson  v.  Cochran,  57,  544. 

V.  Lucas.  40. 
Carter  v.  Ailing,  309. 

V.  Carter,  384. 

V.  Coal  Co.,  399. 

v.  Harden,  231. 

V.  Insurance  Co.,  364. 

V.  Nichols,  366. 

V.  Phillips,  409,  462. 

V.  Scargill,  466. 

V.  Strom,  414. 

V.  West,  249. 
Carthrae  v.  Brown,  383. 
Cartwright  v.  Cartwright,  303. 
Carver  v.  Jackson,  57. 
Case  V.  Ayers,  229. 

v.  Fant,  437. 

V.  Seass,  436. 

V.  Seger,  75. 
Case  Mfg.  Co.  v.  Soxman,  435. 
Casey  v.  Casey,  217,  248. 

v.  Miller,  423. 
Cason  v.  Cheely,  98. 
Caspari  v.  Church,  250. 
Cass  County  Bank  v.  Bricker,  294. 
Casserleigh  v.  Wood,  112,  298. 
Cassiday  v.  McKenzie,  528. 
Cassidy,  Succession  of,  375. 
Castle  v.  Kemp,  286. 
Oastner  v.  Richardson,  90. 
Catawissa  R.  Co.  v.  Titus,  383. 
Cates  V.  Bales,  113. 
Catlett  V.  Trustees,  268. 
Catlin  v.  Tobias,  453,  456. 
Catling  V.  King,  84. 


Caton  V.  Caton,  72,  89,  94. 

V.  Stewart,  287. 
Catts  V,  Phalen,  539. 
Caulkins  v.  Hellman,  101,  102. 
Cavanaugh  v.  Jackson,  74. 
Cavendish  v.  Greaves,  369. 
Caylor  v.  Roe,  72,  95. 
Cayzer  v.  Taylor,  399. 
Cecil  v.  Spurger,  224. 
Central  Lith.  &  E.  Co.  v.  Moore,  100 
Central  Ohio  Salt  Co.  v.  Guthrie,  313. 
Central  R.  Co.  v.  Anderson,  400. 
Central  Shade  Roller  Co.  v.  Cushman, 

315. 
Central  Transp.  Co.  v.  Pullman's  Pal- 
ace-Car Co.,  193,  288. 
Central  Trust  Co.  v.  Bank,  372. 
Central  Trust  Co.  v.  Burton,  343. 
Central  Trust  Co.  v.  Mfg.  Co..  469. 
Cesar  v.  Karutz,  224. 
Chace  v.  Chapin,  354. 
Chadsey  v.  Condley,  33. 

v.  Guion,  407. 
Chadwick  v.  Knox,  286,  287. 
Chaffee  v.  Thomas,  137,  138. 
Chalfant  v.  Payton,  303. 
Challenge  Wind  &  Feed  Mill  Co.  v. 

Kerr,  32. 
Chamberlain  v.  Beller,  508. 

V.  Grimes,  300. 

V.  Railroad  Co.,  295. 

V.  Williamson,  378. 
Chamberlin  v.  Fuller,  228. 

V.  Gilman,  367. 
Chambers  v.  Baldwin,  350. 

V.  Ker,  162. 

v.  Lancaster,  366. 

V.  Seay,  525-527. 
Chambliss  v.  Matthews,  369. 
Cliampenois  v.  Fort,  437. 
Champlin  v.  Parrish,  89. 

V.  Rowley,  453,  551. 
Chancely  v.  Bailey,  333. 
Chandler  v.  Johnson,  293,  323. 

V.  Marsh,  471. 

V.  Sanger,  244,  540. 

V.  Simmons,  163,  173. 
Chanter  v.  Hopkins,  462,  465. 

V.  Leese,  382,  383. 
Chapin  v.  Brown,  306. 

V.  Chapin,  442. 

V.  Dobson,  394. 

V.  Longworth,  360,  364. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


571 


Chapln  V.  Shafer,  1G4.  170. 
Chaplin  v.  Rogers,  102. 
Cbapman  v.  Brooklyn,  471. 

V.  Dease,  16. 

V.  Hughes,  158. 

V.  J.  W.  Beltz  &  Sons  Co..  444. 

V.  Persinger,  57. 

V.  Rose,   198. 

V.  Sutton,  537. 
Chappel  V.  Brockway,  308. 

V.  Spencer,  482. 
Chappie  V.  Cooper,  156,  158,  548. 
Charles  v.  Hastedt,  178. 

V.  Scott,  59. 
Charles  Green's  Son  v.  Salas,  146. 
Charley  v.  Potthoff,  4G6. 
Charlton  v.  Reed,  480. 
Charnley  v.  Wlnstanley,  528. 
Chase  v.  Day,  68. 

V.  Fltz,  72,  378. 

V.  Henry,  382. 
Chase  Nat.  Bank  v.  Faurot,  271. 
Chase's  Ex'rs  v.  Burkholder,  324. 
Chastain  v.  Bowman,  497. 
Chateau  v.  Singla,  328. 
Chateaugay  Ore  &  Iron  Co.  v.  Blake, 

398,  399. 
Chatham  Furnace  Co.  v.  Moffatt,  230. 
Cheddick's  Ex'r  v.  Marsh,  412. 
Cheek  v.  Bellows,  190. 
Cheesman  v.  Wiggins,  70. 
Cheltenham    Stone    &   Gravel    Co.    V. 

Iron  Works,  435. 
Chemical  Co.  v.  Pegram,  385. 
Chemical  Electric  Light  &  Power  Co. 

V.  Howard,  469. 
Chenault  v.  Bush,  470. 
Cheney  v.  Cook,  35. 

V.  Duke,  330. 

V.  Eastern  Transp.  Line,  29. 

V.  Libby,  409. 
Cherbonnier  v.  Evitts,  250. 
Chesapeake  &  O.   Canal   Co.   v.   Hill, 
403. 

V.  Ray,  425. 
Chesapeake   &    P.    Tel.    Co.    v.   Tele- 
graph Co.,  289. 
Chesebrough  v.  Conover,  286. 
Cheshire  v.  Bai-rett,  168. 
Chestei-field  v.  Jansen,  251. 
Cheveront  v.  Textor,  133,  258. 
Chicago  V.  Tilley,  449. 
Chicago    Attachment    Co.    v.    Sewing 
Mach.  Co.,  74,  92. 


Chicago  Bldg.   &  Mfg.   Co.  v.  Barry, 
446. 
V.  Graham,  416. 
Chicago,   B.  &  Q.   R.   Co.  v.  Aurora, 

406. 
Chicago  Dock  Co.  v.  Kinzie,  91,  96. 
Chicago  Gaslight  &  Coke  Co.  v.  Coke 

Co.,  288. 
Chicago,  M.  &  St.  P.  Ry.  v.  Clark,  130, 

132. 
Chicago,  S.  F.  ot  C.  R.  Co.  v.  Price, 

460. 
Chicago,  St.  P.,  M.  &  O.  Ry.  v.  Belli- 

with,  197. 
Chicago  &  G.  E.  R.  Co.  v.  Dane,  31, 

33,  119. 
Chick  V.  Trevett,  113. 
Chicora  Fertilizer  Co.  v.  Dunan,  131. 
Childers  v.  Bank,  407. 
Childs  V.  Merrill,  225,  237. 
Chilton  V.  People,  52. 
Chipley  v.  Atkinson,  350. 
Chippewa  V.  R.  Co.  v.  Railroad  Co., 

285. 
Chowne  v.  Baylis,  539. 
Chrisman  v.  Hodges,  420. 

V.  Miller,  462. 
Christian  College  v.  Hendley,  118. 
Christie  v.  Bridgman,  141. 

V.  Craige,  492. 
Christy  v.  Sullivan,  207,  544. 
Chrysler  v.  Canaday,  224,  227. 
Chubbuck  v.  Cleveland,  231. 
Chung  Kee  v.  Davidson,  356. 
Church  V.  Fowle,  482. 
V.  Gas  Co.,  192. 
V.  Proctor,  332. 
Churchill  v.  Bradley,  11*. 
V.  Holt,  535. 
V.  Scott,  251. 
V.  Suter,  272. 
Chute  V.  Quincy,  236. 
Chytraus  v.  Smith,  26. 
Cicotte  V.  Church  of  St.  Anne,  41. 
Citizens'  Bank  v.  Grafflin,  542. 
Citizens'  Building  Ass'n  v.  Cummings, 

53. 
Citizens'   Fire   Ins.    Security   &  Land 

Co.  V.  Doll,  407. 
Citizens'  Nat.  Bank  v.  Richmond,  479. 

V.  Smith,  199. 
Citizens'   Sav.   Bank  &   Trust  Co.   v. 

Babbitts'  Estate,  123. 
Citty  V.  Mfg.  Co.,  97. 


I 


572 


CASES   CITED. 
[The  figures  refer  to  pages.] 


City  Nat.  Bank  v.  Kusworm,  245,  252. 

City  of  Aurora  v.  West,  335. 

City  of  Baltimore  v.  Huglies,  534. 

City  of  Chicago  v.  Weir,  407. 

City  of  Cincinnati  y.  Coke  Co.,  407. 

City  of  Elgin  v.  Joslyn,  397. 

City  of  Elizabeth  v.  Fitzgerald,  433. 

V.  Force,  480. 
City  of  Garden  City  v.  Heller,  404. 
City  of  Memphis  v.  Bethel,  272. 
City  of  Minneapolis  v.  Renm,  146. 
City  of  New  Britain  v.  Telephone,  412. 
City  of  New  Orleans  v.  Railroad  Co., 

451. 
City  of  Newport  News  v.  Potter,  359. 
City  of  Ottawa  v.  First  Nat.  Bank,  57. 
Claflin  V.  Boorum,  271,  272. 

V.  Godfrey,  471,  545. 

v.  Lenheim,  526. 

V.  Meyer,  343. 

V.  Torlina,  333. 
Clanton  v.  Scruggs,  76. 
Clapp  V.  Banking  Co.,  393. 
Clara  A.  Mclntyre,  The,  300 
Clark  V.  Bank,  509. 

V.  Bowen,  494. 

V.  Clark,  94. 

V.  Coffin  Co.,  395. 

V.  Collier,  461. 

V.  Crosby,  307. 

V.  Fisk,  357. 

V.  Fosdick,  303. 

V.  Gilbert,  550. 

V.  Goddard,  153. 

V.  Herring,  106. 

V.  Insurance  Co.,  215. 

V.  Jones,  68,  70.  71,  123. 

V.  Kirkpati'ick,  179. 

V.  Lovering,  524. 

V.  Mallory,  392,  404. 

V.  Marsiglia,  446. 

V.  Martin,   376, 

V.  Moody,  508. 

V.  Moore,  453,  487. 

V.  Needham,  308. 

V.  Parish,  381. 

V.  Pease,  246. 

V.  Pendleton,  72.  78.  81. 

V.  Pinney,  537. 

V.  Railroad  Co.,  382. 

V.  Ralls,  228. 

V.  Russell,   123. 

V.  Steel  Works,  455. 

V.  Sylvester,  542. 


Clark  V.  Tate,  170. 

V.  Terry,  553. 

V.  Thayer,  239. 

V.  Turnbull,  242,  243. 

V.  Van  Court,  167. 

V.  Weiss,  459. 

V,  Woodruff,  407. 
Clarke  v.  Brown,  338. 

V.  Dickson,  235. 

V.  Dutcher,  544. 

V.  Foss,  280. 

V.  Lumber  Co.,  341. 

V.  McAnlifCe,  75. 

V.  Morey,  148. 

V,  Railroad  Co.,  429. 

V.  White,  257. 
Clark's  Case,  490. 
Clason  V.  Bailey,  8o,  89. 
Clawson  v.  Doe,  170. 
Clay  V.  Field,  395. 

V.  Ricketts,  36. 

V.  Yates,  259,  332. 
Clayton  v.  Clark,  130. 

V.  Kynaston,  381. 

V.  Meri'ett,  528. 
Clayton's  Case,  438,  439. 
Clealand  v.  Walker,  503,  523. 
Cleary  v.  Sohier,  473. 
Cleaveland  v.  Richardson,  221. 
Cleaver  v.  Lenhart,  306. 
Clem  V.  Railroad  Co.,  226. 
Clement  v.  Brown,  4o6. 

V.  Gunhouse,  52. 
Clements  v.  Railroad  Co.,  412. 
Clement's  Appeal,  70,  257. 
Clement  &  Hawkes  Mfg.  Co.  v.  Meser- 

ole,  447. 
Cleudining  v.  Church,  276,  277. 
Clerihew  v.  Bank.  393. 
Cleveland  v.  Williams,  528. 
Cleveland  Rolling  Mill  v.  Rhodes,  410, 

455,  464. 
Clews  v.  Jamieson,  278. 
Clifford  V.  Watts,  134.  135. 
Clifton  V.  Iron  Co.,  478. 
Clinch  Valley  Coal  &  Iron  Co.  v.  Wil- 
ling, 393. 
Cline  V.  Guthrie,  198. 

V.  Templeton,  125. 
Clinton  Nat.  Bank  v.  Studemann,  70. 
Clodfelter  v.  Cox,  370. 
Cloud  v.  Greasley,  88. 
I  Clough  V.  Giles.  423. 
1  V.  Railroad  Co.,  235,  236. 


CASES   CITED. 


573 


Clute  r.  Robison,  309. 
Clutter  V.  Clutter,  248. 
Coad  V.  Rogers,  28. 
Coapstick  v.  Bosworth,  393. 
Coates  V.  Sangston,  393. 

V.  Wilson,  156. 
Cobb  V.  Billings,  265. 

V.  Charter,  540. 

V.  Cowdery,  109,  113,  128,  323. 

V.  Duke,  189. 

V.  Foree,  26,  S'L 

V.  Hatfield,   235-237. 

V.  Knapp,  522,  523. 

V.  Ma  lone,  492. 

V.  Wright,  233. 
Cobett  V.  Norcross,  55. 
Cobleigh  v.  Pierce,  257. 
Coburn  v.  Goodall,  373. 

V.  Webb,  481,  482. 
Cocanougher  v.  Green.  495. 
Cochran  v.  Nebeker,  480. 

V.  Railway  Co.,  412. 

V.  Stewart,  238. 

V.  Ward,  93,  97. 

V.  Willis,  201. 
Cochrane  v.  Halsey,  221. 
Cockle  V.  Flack,  273. 
Cocks  V.  Barker,  56. 

V.  Simmons,  152. 

V.  Varney,  358. 
Coddlngton  v.  Goddard,  83,  89,  221. 
Coe  V.  Hinkley,  367. 

V.  Hobby,  393. 

V.  Tough,  84. 
Cofer  V.  Moore,  116. 
Coffin  V.  Landis,  430. 

V.  Mcintosh,  75. 

V.  Talman,   374. 
Cogel  V.  Kniseley,  222,  224. 
Coggs  V.  Bernard,  ill. 
Cogley  V.  Cushman,  165,  171. 
Cohen  v.  Envelope  Co.,  315. 

V.  Insurance  Co.,  148. 
Coit  V.  Telegraph  Co.,  320. 
Colbert  v.  Shepherd,  510. 
Colby  V.  Dearborn,  389. 
Cold  Blast  Transp.  Co.  v.  Bolt  &  Nut 

Co.,  120. 
Colderwood  v.  McCrea,  342. 
Cole  V.  Cassidy,  229. 

V.  Cole,  179. 

V.  Edwards,  311. 

V.  Hughes,   375. 

V.  Milmine,  280. 


[The  figures  refer  to  pages.] 

Cole  V.  O'Brien,  518. 

V.  Pennoyer,  151,  153,  154. 

V.  Seeley,  151. 

V.  Singerly,   77,  78. 

V.  Smith,  227. 
Coleman  v.  Applegarth,  33,  34. 

V.  Bank,    522. 

V.  Billings,  298. 

V.  Eyre,  99,  117. 

V.  Frazer,  179. 

V.  Whitney,  356,  357. 
Coleman's  Estate,  In  re,  247. 
Coles  V.  Kennedy,   222. 

V.  Railroad  Co.,  320. 

V.  Trecothick,  115. 

V.  Vanneman,   236. 
Colgate  V.  Pennsylvania  Co.,  399. 
Collamer  v.  Day,  276. 
Collar  V.  Patterson,  17,  549. 
College  Mill  Co.  v.  Fidler,  27,  42. 
Collen  V.  Wright,  518. 
Collier  v.  Coates,  92,  552. 

V.  White,  441. 
Collins  V.  Blantern,  59,  293. 

V.  Collins,  483. 

V.  Insurance  Co.,  520. 

V.  Lavelle,  403. 

V.  Locke,  296,  317. 

V.  Rainey,  510. 

V.  Tillou's  Adm'r,  508. 

V.  Westbury,  244. 
Collyer  v.  Collyer,  41. 

V.  Moulton,  419,  423,  446. 
Colton  V.  Gorham,  374. 
Columbia  Bank  v.  Hagner,  459,  461. 
Columbian  Bldg.  Ass'n  v.  Crump,  440. 
Columbus  Const.  Co.  v.  Crane  Co.,  403. 
Colusa  County  v.  Welch,  285. 
Colwell  V.  Lawrence,  413. 
Colyer  v.  Hyden,  54. 
Combination  Steel  &.  Iron  Co.  v.  Rail- 
way Co.,  435. 
Combs  V.  Hawes,  172. 

v.  McQuinn,  299. 

V.  Scott,  490,  505,  506. 
Comer  v.  Baldwin,  55. 
Comitis  V.  Parkerson,  146. 
Comley  v.  Dazian,  357. 
Commercial  Bank  v.  Norton,  511,  512. 

V.  Warren,  483. 
Commercial    Fire    Ins.    Co.    v.    Allen, 

441,  442. 
Commercial  Nat.   Bank  v.  Smith,  87. 

V.  Wheelock,  246. 


574: 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Commercial  Tel.  Co.  v.  Smith,  29,  42, 

43. 
Commercial  Union  Assur.  Co,  v.  Hock- 
ing, 295. 
Com.  V.  Dupuy,  297. 

V.  Eastman,  222. 

V.  Gillespie,  267. 

V.  Hunt,  317. 

V.  Insurance  Co.,  215. 

V.  Lane,  344. 

V.  Matthews,  268. 

V.  Moltz,  218. 

V.  Murray,  151. 

V.  Rees,  267. 

V.  Richards,  303. 
Commonwealth  Title  Ins.  &  Trust  Co. 

V.  Ellis,  407. 
Compton  V.  Bank,  243,  245. 

V.  Jones,  363. 
Comstock  V,  Adams,  304. 

V.  Hier,  537. 

V.  Sanger,  467. 

V.  Smith,  138. 

T.  Ward,  81. 
Conaut  V.  Bank,  392. 

V.  Canal  Co.,  505. 

V.  Jackson,  179. 
Conaway  v.  Sweeny,  115. 
Condict  V.  Flower,  482. 
Condit  V.  Baldwin,  505. 
Condon  v.  Kemper,  412,  413, 
Conduitt  V.  Ross,  375. 
Cone  V.  Cross,  17. 
Conflaus  Quarry  Co.  v.  Parker,  484. 
Conger  v.  Railroad  Co.,  490. 
Conkey  v.  Bond,  510. 
Con  Ian  v.  Roemer,  236. 
Conley  v.  Nailor,  187,  301. 

V.  Sims,  264. 
Conn  V.  Coburn,  158,  160. 
Connecticut  Ins.  Co.  v.  Luchs,  219. 
Connecticut  Mut.  Life  Ins.  Co.  v.  Wes- 

terhoff,  272. 
Connelly  v.  Devoe,  128. 
Conner  v.  Henderson,  238. 
Connolly  v.  Giddings,  80. 
Connor  v.  Black,  342. 

V.  Renneker,  33. 

V.  Stanley,  249. 
Conover  v.  Stillwell,  126. 
Conrad  v.  Gibbon,  272. 

V.  Lane,  177. 

V.  Schwamb,  115. 

V.  Trustees  of  Grand  Grove,  441. 


Conroe  v.  Birdsall,  177. 
Conrow  v.  Little,  237. 
Constable  v.  Steamship  Co.,  320. 
Constant  v.  University,  122. 
Consumer's   Oil   Co.    v.   Nunnemaker,. 

309,  325. 
Contiue  v.  Phillips,  158. 
Converse  v.  Blumrich,  218. 
Conway  v.  Post  Co.,  290. 
Cooch  V.  Goodman,  52,  59. 
Cook  v.  Bradley,  109,  111. 

V.  Brown,  53,  55. 

V.  Ferral's  Adm'rs,  459. 

v.  Forker,  269. 

V.  Johnson,  310,  311. 

V.  McCabe,  473. 

v.  Mix,  471. 

V.  liedman,  81. 

V,  Shipman,  285. 

V,  Tullis,  503. 

V.  Wright,  122,  125. 
Cooke  V,  Davis,  289. 

V.  Millard,  100,  101. 

V.  Murphy,   128. 

v.  Oxley,  33,  35,  110. 
Cookingham  v.  Dusa,  237. 
Cooley  V.  Osborne,  298. 

V.  Wlllard,  513. 
Coolidge  V.  Brigham,  235. 

V.  Ruggles,  362. 
Coombs  V.  Wilkes,  84,  88. 
Coon  V.  Anderson,  380. 

V.  Spaulding,  408. 
Cooper  V.  Berry,  398. 

V.  Bill,  103. 

V.  Cooper,  17,  539,  549. 

V.  Finke,  390. 

V.  Kane,  396. 

V,  Lovering,  227, 

V.  Phibbs,  201,  206. 

V.  Schlesinger,  229. 

V.  Schwartz,  505. 

V.  Wheel   Co.,  120. 
Cope  V.  Rowlands,  260-262,  264. 
Coplay  Iron  Co.  v.  Pope,  467. 
Coquillard's  Adm'r  v.  Bearss,  285,. 
Corbett  v.  Spencer,  170. 
Corbin  v.  Laswell,  52. 
Corbitt  V.  Gaslight  Co.,  89. 
Corby  v.  Weddle,  198. 
Corcoran  v.  White,  28. 
Cordes  v.  Miller,  474. 
Cordwert  v.  Hunt,  424. 
Cornell  v.  Green,  441. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


575 


Cornlg  V.  Carr,  45. 
Corning  v.  Abbott,  261. 
Cornish  v.  Suydam,  421. 

V.  Wesf;  416. 
Cornish,  Curtis  &  Greene  Co.  v.  Ass'n, 

431. 
Corn  well  v.  Megins,  423. 
Cornwells  v.  Krengel,  36. 
Corpe  V.  Overton,  176. 
Corrigan  v.  Pironi,  249. 
Corser  v.  Hale,  28. 
Cort  V.  Lassard,  490. 

v.  Railway  Co.,  447. 
Cory  V.  Freeholders,  538,  540. 

V.  Ship  Bldg.  Co.,  487. 
Cosand  v.  Bunker,  96. 
Cossitt  V.  Hobbs,  86. 
Costar  V.  Davies,  435. 
Costello  V.  Cady,  491. 
Coster  V.  Albany,  .358. 
Costigan  v.  Lunt,  383. 

V.  Railroad  Co.,  375. 
Coston  V.  Morris,  15. 
Cote  V.  Mui'phy,  318. 
Cotheal  v.  Talmage,  413. 
Cothran  v.  Ellis,  276. 

V.  Scanlan,  442. 
Cottage  St.  M.  E.  Church  v.  Kendall, 

118. 
Cotten  V.  McKenzie,  323. 
Cottom  V.  Holliday,  510. 
Cotton  V.  Graham,  108. 
Cottrell  V.  Southwick,  274,  275. 
Cottrill  V.  Krum,  228. 
Cotzhausen  v.  Simon,  229. 
Couch  V.  Ingersol,  451. 

V.  Meeker,  56. 

v.  Mills,  381. 
Couder  v.  Hall,  200. 
Coudert  v.  Sayre.  375. 
Coughlin  V.  Knowles,  91. 

V.  Railroad  Co.,  297,  298. 
Coulkins  v.  Fry,  186. 
Coulter  V.  Robertson,  333. 
Coulurier  v.  Hastie,  516. 
Counselman   v.   Reichart,   278. 
Countess   of  Dunmore   v.   Alexander, 

31. 
County  of  Des  Moines  r.  Hinkley,  366. 
Coursolle  v.  Weyerhauser,  154. 
Courtney  v.  Blackwell,  250 
Courtright  v.  Burnes,  300. 
Couturier  v.  Hastie,  71,  201. 
Covel  V.  Turner,  41. 


Coventry  v.  Barton,  508. 
Coverdale  v.  Eastwood,  218. 
Cowan  V.  Milboiu-n,  332. 

V.  Musgrave,  17. 
Cowee  V.  Cornell,  247. 
Cowles  V.  Bacon,  218. 

V.  Whitman,  489. 
Cowles  Electric  Smelting  &  Aluminum 

Co.  V.  Lowrey,  404,  406. 
Cowley  V.  Smyth,  218. 
Cox  V.  Brewing  Co.,  82. 

V.  Brookshire,  273. 

V.  Davis,  389. 

V.  Highley,  230. 

V.  Long,  463. 

V.  Montgomery,  236. 

V.  Prentice,    545. 

V.  Smith,  273,  289. 
Coykendall  v.  Constable,  505. 
Coyle  V.  Campbell,  264. 
Coyne  v.  Avery,  410. 
Coyner  v.  Lynde,  128. 
Cozart  V.  Herndon,  23. 

V.  Land  Co.,  96. 
Crabill  v.  Marsh,  93. 
Crabti-ee  v.  May,  162. 

V.  Messersmith,  444,  448. 

V.  Opera  House  Co.,  28. 
Craddock  v.  Dwight,  435. 
Craft  V.  Kendrick,  72. 

v.  McConoughy,  313,  337. 
Crafts  v.  Carr,  156. 
Cragin  v.  Railroad  Co.,  429. 
Craig  V.  Hamilton,  232. 

V.  Seitz,  141,  142. 

V.  Van  Bebber.  169,  170,  173. 
Craighead  v.  Peterson,  506. 

V.  Wells,  172. 
Cram  v.  Hendricks,  271. 
Cramer  v.  Redman,  117. 
Crandall  v.  Payne,  356. 
Crane  v.  C.  Crane  &  Co.,  120. 

V.  Gough,  72,  91,  367. 

V.  Gruenewald,  502. 

V.  Powell,  96. 

v.  '^'S'heeler,  67. 
Crans  v.  Hunter,  125. 
Cranson  v.  Goss.  269. 
Crawford  v.  Bank,  480. 

V.  Cato,  244. 

V.  Edison,   72, 

V.  King,  71. 

V.  Millspaugh,   419. 

T.  Morrell,  322. 


576 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Crawford  v.  Publishing  Co.,  428. 
V.  Russell,  303. 

V.  Spencer,  278,  335. 
Crawshaw  v.  Roxbury,  40. 
Crayton  v.  Clark,  369. 
Cream  City  Glass  Co.  v.  Friedlander, 

394. 
Crears  v.  Hunter,  122. 
Crehore  v.  Crehore,  232. 
Cremer  v.  Higginson,  438. 
Cresinger  v.  Welch's  Lessee,  170. 
Cresswell  Ranch  &  Cattle  Co.  v.  Mar- 

tiudale,  455. 
Cribbins  v.  Markwood,  252. 
Cribbs  v.  Sowle,  241. 
Crichfield  v.  Paving  Co.,  337. 
Cripps  V.  Roade.  545. 
Crisfleld  v.  State,  534. 
Crist  V.  Armour,  448. 
Crisup  V.  Grosslight,  292. 
Critcher  v.  Holloway,  331. 
Critchfield  v.  Paving  Co.,  285,  287. 
Crittenden  v.  Fiske,  24. 
Crocker  v.  Railroad  Co.,  31,  34. 

V.  Whitney.  363. 
Crockett  v.  Scribner,  100. 
Crompton  v.  Pratt,  439. 
Cromwell  v.  Grunsden,  52. 

V.  Sac  Co..  493. 

V.  Tate's  Ex'r,  53. 

V.  Wilkinson,   410. 
Cronin  v.  Watkins,  374. 
Croninger  v.  Crocker,  442. 
Cronk  v.  Trumble,  93. 
Crook  V.  Cowan,  15. 
Crooks  V.  Nippolt,  236. 
Cropp  V.  Hambleton,  441. 
Crosby  v.  Fitch,  429. 

V.  Wadsworth,  76. 
Cross  v.  Cheshire,  535. 

V.  O'Donnell,  101,  103. 

V.  People,  281. 
Crossley  v.  Maycock,  28,  43. 

V.  Moore,  333,  341. 
Crouch  v.  Credit  Foncier,  369. 
Croucher  v,  Oakraan,  486. 
Crowder  v.  Keys,  68. 
Crowe  V.  Peters,  179. 
Crowell  V.  Hopkinton,  38. 

V.  Hospital,  358. 

V.  Jackson,  221. 
Crowfoot  V.  Giirnciy,  367. 
Crowther  v.  Farrer,  122. 


Crowther  v.  Rowlandson,  180. 
Croyle  v.  Moses,  222. 
Crura  V.  Sawyer,  112. 
Cuddee  v,  Rutter,  489. 
Cul breath  v.  Cul breath,  537. 
Cullen  V.  Butler,  405. 
Gulp  V.  Love,  308. 
Culver  V.  Banning,  110,  118. 

V.  Bigelow,  272. 
Cumber  v.  Wane,  129. 
Gumming  v.  Hackley,  536. 
Cummings  v.  Arnold,  65,  426. 

V.  Gann,  38,  39. 

V.  Henry,  186. 

Y.  Lake  Realty  Co.,  30. 

V.  Stone  Co.,  315. 
Cummins  v.  Cassily,  500. 

V.  Heald,  511. 
Cimdell  v.  Dawson,  261. 
Gundy  v.  Lindsay,  199,  239. 
Cunningham  v.  Bank,  279,  335,  342. 

V.  Reardon,  548. 

V.  Williams,  83,  89. 
Curliffe  v.  Harrison,  442. 
Curran  v.  Galen,  317.  , 

Currie  v.  Misa,  107. 
Curry  v.  Curry,  17. 

V.  Insurance  Co.,  214. 

V.  Railway  Co.,  416. 
Curson  v.  Monteiro,  58. 
Curtin  v.  Patton,  167. 
Curtis  V.  Aspinwall,  258. 

v.  Blair,  501. 

V.  Brown,  71. 

V.  Brownell,  180. 

V.  Clark,  470. 

V.  Leavitt,  340. 

V.  Sage,  80,  81. 

y.  Van  Bergh,  412. 
Curtiss  V.  Howell,  226.  237. 
Cusack  V.  Robinson,  101. 
Gushing  V.  Drew,  412. 

V.  Wyman,  439. 
Cutler  V.  Dickinson,  57. 

V.  Hamlen,  224. 

V.  Howe,  399. 

V.  Welsh,  331. 
Cutsinger  v.  Ballard,  94. 
Cutter  V.  Cochrane,  419,  420. 

V.  Powell,  457,  477,  551. 
Cutting  V.  Railway  Co.,  486,  487, 
Cutts  V.  Guild,  202,  207. 
Cuxon  V.  Chadley,  363,  422. 


Dade  Coal  Co.  v.  Haslett,  148. 
Dady  v.  Oondit,  233. 
Dailey  v.  Caiu,  78. 

V.  Greeu,  4(J3,  4C9. 

V.  Kinsler,  96. 
Dails  V.  Lloyd,  542. 
Daily  v.  Litchlield,  414. 

V.  Minuinck,  107,  139. 
Dakin  v.  Pomeroy,  371. 

V.  Williams,  451,  46L 
Dale  V.  Kimpton,  368. 

V.  Kuepp,  2GS. 

V.  Robinson,  191. 
Daley  v.  Investment  Co.,  273,  274. 
Dallas  V.  Hollingsworth,  170,  175. 
Dalpay,  In  re,  345. 
Dalton  V.  Goddard,  516. 

V.  Thurston,  222. 
Daly  V.  Smith,  490. 
Dambmann  v.  Lorentz,  35,  45. 

V.  Schulting,  221. 
Dame  v.  Flint,  343. 
Damon  v.  Osborn,  102. 
Dana  v.  Coombs,  168. 

V.  Fielder,  397. 

V.  Hancock,  426. 
Danby  v.  Coutts,  525. 
Danforth  v.  Freeman,  432. 

V.  Railroad  Co.,  488. 
Daniel  v.  Swearengen,  350. 

V.  Tarver,  471. 
Daniels  v.  Barney,  337. 

T.  Brodie,  507. 

V.  Meinhard,  366. 

V.  Newton,  447. 
Dannat  v.  Fuller,  409. 
Danolds  v.  State,  145. 
Dant  V.  Head,  80. 
Darby  v.  Kroell,  233. 
D'Arcy  v.  Lyle,  508. 
Darling  v.  Stanwood,  511. 
Darlington  Iron  Co.  v.  Foote,  26. 
Darlington's  Appeal,  250. 
Darraugh  v.  Blackford,  168 
Darrow  v.  Produce  Co.,  394. 

V.  St.  George,  526,  527. 
Darst  V.  Bates,  71. 

V.  Brockway,  471. 
Darwin  v.  Rippey,  481. 
Dashaway  Ass'n  v.  Rogers,  538,  540. 
Dashiel  v.  Harshman,  233. 

Clakk  Cont.(2d  Ed.)— 37 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Dauchey  v.  Drake,  431. 
Dausch  V.  Crane,  240. 
Davenport  v.  Newton,  28. 

V.  Ottawa,  280. 

v.  Society,  129. 
Davidson  v.  Bohlman,  264. 

V.  Burke,  419. 


577 


V. 

Carter,  340. 

V. 

Cooper,  480,  482. 

V. 

Little,  252. 

V. 

Nichols,  232. 

V. 

Young,  178. 

Davie 

V.  Mining  Co.,  44,  119. 

Da  vies 

V.  Burns,  284. 

V. 

Davis,  226. 

V. 

Humphreys,  534. 

V. 

Lowen,  324. 

V. 

Stowell,  298. 

Davis 

V.  Arledge,  257. 

V. 

Bank,  528. 

V. 

Bauer,  484. 

V. 

Belford,  383,  416. 

V. 

Bronson,  329,  344r446 

V. 

Burton,  53. 

V. 

Caldwell,  157,  159. 

V. 

Chase,  298. 

y. 

Com.,  286. 

V. 

Davis,  226. 

V. 

England,  519,  520. 

V. 

Foreman,  490. 

V. 

Gallagher,  18. 

V. 

Gay,  160. 

V. 

Hamlin,  510.    ■ 

V. 

Henry,  480,  481. 

V. 

Higgins,  389. 

V. 

Jeffris,  451. 

V. 

Lane,  504,  528,  529. 

V. 

McFarlane,  76. 

V. 

McVickers,  471. 

V. 

Morton,  493. 

V. 

Parish,  36. 

V. 

Patrick,  71. 

V. 

Phillips,  179. 

V. 

Railroad  Co.,  20,  194 

V. 

Robert,  120. 

V. 

Sanderlin,  384. 

V. 

Settle,  300. 

V. 

Shafer,  416. 

V. 

Shields,  89. 

V. 

Sloman,  273. 

V. 

Smith,  245,  293. 

V. 

Tihbats,  327. 

V, 

Van  Buren,  381. 

578 


Davis  V.  Webber,  298. 

V.  Williams,  54. 

V.  Wills,  24. 
Davison  v.  Vou  Lingen,  210,  464. 
Davis  Sewing  Macli.  Co.  v.  Ricliards, 

24. 
Davisson  v.  P'ord,  124,  125. 
Davis  &  Rankin  Bldg.  &  Mfg.  Co.  v. 
Barber,  416. 

V.  Bootli,  416. 
Dawe  V.  Morris,  225,  226. 
Dawes  v.  Prentice,  405. 
Dawklns  v.  Gill,  292. 

V.  Sappingtou,  40. 
Dawson  V.  Ewiug,  441. 

V.  Godfrey,  146. 

V.  Hall,  55,  56. 

V.  Helmes,  170,  173. 

V.  Kittle,  398. 
Day  V.  Buggy  Co.,  194. 

V.  Caton,  15. 

V.  Davis,  59. 

V.  Gardner,  107,  131. 

V.  Griffith,  55. 

V.  Laeasse,  91. 

V.  Leal,  58,  479. 

V.  McAllister,  269. 

V.  McLea,  492. 

V.  Railroad  Co.,  79. 
Dayton  v.  Fargo,  364. 

V.  Hooglund,  467,  469. 

V.  Moore,  273. 
D.  B.  Steelman,  The,  439. 
Deal  V.  Maxwell,  100. 
Dean  v.  Dicker,  277. 

V.  Emerson,  308,  324. 

V.  James,  367. 

v.  Nelson,  413. 

V.  Richmond,  189. 

V.  St.  Paul  &  D.  R.,  366. 
Dearborn  v.  Bowman,  138. 
Dearden  v.  Adams,  175. 
Deason  v.  Boyd,  168. 
De  Baun  v.  Brand,  258. 
Debenham  v.  Mellon,  501,  526,  527. 
De  Bussche  v.  Alt,  511. 
De  Camp  v.  Hamma,  198. 
Decell  V.  Lewenthal,  157,  158. 
Decker  v.  Saltsman,  290. 
Decosta  v.  Davis,  97. 
De  Creraer  v.  Anderson,  24. 
Deering  v.  Chapman,  323. 

V.  Thorn,  519. 

V.  Winchelsea,  534. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Deering  &  Co 


V.  Cunningham,  286*. 
Deford  v.  Dryden,  436. 
De  Forest  v.  Strong,  273. 
De  Graff  v.  Wickham,  412. 
De  Gray  v.  Clubhouse  Co.,  375,  376. 
De  Jamett  v.  De  Giverville,  147. 
Delamater  v.  Miller,  448. 
Delano  v.  Blake,  166,  169. 

V.  Montague,  81. 
Delaplane  v.  Crenshaw,  399. 
Delashmutt  v.  Thomas,  44. 
Delavina  v.  Hill,  330. 
Delier  v.  Society,  277. 
De  Long  v.  Lee,  392. 
Delp  V.  Brewing  Co.,  70. 
Demarest  v.  Willard,  365,  373. 
Demars  v.  Mfg.  Co.,  124. 
De  Mattos  v.  Gibson,  490. 
De  Mesnil  v.  Da  kin,  540. 
Deming  v.  Bullitt,  517. 

V.  Darling,  227. 
Denby  v.  Moore,  541,  544. 
Denison  v.  Crawford  Co.,  285. 
Denlar  v.  Hile,  94. 
Dennehy  v.  McXulta,  321. 
Dennett  v.  Dennett,  179,  180. 
Denning  v.  Yount,  346. 
Dennis  v.  Jones,  236. 

V.  Maxfield,  488. 

V.  Slyfield,    119. 
Dennison  v.  Insux'ance  Co.,  219. 
Denny  v.  Williams,  97. 
Dent  V.  Bennett,  247,  249. 

V.  Ferguson,    116. 

V.  Long.  253. 

V.  Steamship  Co.,  15. 
Dentler  v.  O'Brien,  162. 
Denton  v.  Railroad  Co.,  38. 
Denver  Fire   Ins.   Co.  v.  McClelland, 

193. 
Denver  &  N.  0.  Const.  Co.  v.  Stout, 

295. 
Denver  &  N.  O.  R.  Co.  v.  Railroad  Co., 

289. 
Deputy  V.  Stapleford,  246. 
Derby  v.  Johnson,  447,  485. 

V.  Phelps,  81. 

V.  Thrall,  483. 
Dermott  v.  Jones.  16,  473. 
Derocher    v.    Continental    Mills,    175, 

176. 
Derrett  v.  Bowman,  410. 
Derrick  v.  Monette.  36. 
Derringer  v.  Moynihau.  72. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


579 


Dprry  v.  Peak,  218. 

V.  Peek,  230. 
Des  Farges  v.  Pugh,  222. 
Desha  v.  Holland,  398. 
Deshazo  v.  Lewis,  426. 
Deshon  v.  Wood,  72. 
Desilver's  Estate,  In  re,  181. 
Des   Moines  Nat.  Bank  v.   Chisholm, 

179. 
Desmond-Dunne  Co.  v.  Friedman-Dos- 

cher  Co.,  431. 
De  Sobry  v.  De  Laistre,  300. 
Despatch  Line  v.  Mfg.   Co.,  503,  513. 
Detwiler  v.  Bish,  198. 
Devall  V.  Burbridge,  509. 
Devaux  v.  Conolly,  545,  546. 
Devaynes  v.  Noble,  438,  439. 
Devecmon  v.  Shaw,  107,  114. 
Devine  v.  Edwards,  543,  545. 
Devlin  v.  Brady,  287. 

V.  Chamblin,    436. 

V.  New  York,  364,  365. 
Devoe  v.  Brandt,  222. 
Dewees  v.  Miller,  276. 
Dewey  v.  Allgire,  179,  183. 

V.  School   Dist,  477. 
De  Witt  V.  Root,  67. 
De  Witt  Wire-Cloth  Co.  v.  Wire-Cloth 

Co.,  313. 
De  Wolf  V.   Chicago,   15. 
Dexter  v.  Hall,  154,  181. 

V.  Norton,  476. 

V.  Ohlander,  393,  394. 
Dey  V.    Dox,  450-452,   461. 
Deyo  V.  Ferris,  76,  283. 
Deyoe  v.  Woodworth,  283. 
Dial  V.  Wood,  151. 
Diamond   Match   Co.   v.   Roeber,   308, 

309. 
Dick  V.  Page.  528. 
Dicken  v.  Johnson,  180. 
Dickerman  v.  Ashton,  500. 

T.  Day,  271. 
Dickerson  v.  Colgrove,  219. 

V.  Com'rs,  425. 
Dickinson  v.  Burr  ell,  299. 

V.  Calahan's  Adm'rs,  378. 

V.  Dodds,   33,  34. 

V.  Gay,  399. 

V.  Richmond,  268. 
Dickson  v.  Kittson,  302. 
Diefenback  v.  Stark,  462. 
Dietz's  Assignee  v.  Sutcliffe,  549. 
Diffenderfer  v.  Scott,  107. 


Di  lorio  v.  Di  Braslo,  125. 
Dilk  V.  Keighley,  158. 

V.  White,  415. 
Dillaby  v.  Wilcox,  69. 
Dillman  v.   NadlehofCer,  226,  227. 
Dillon  V.  Allen,  260,  265. 

V.  Burnham,   177. 
Diman  v.  Railroad  Co.,  208. 
Dimmock  v.  Hallett,  219. 
Dingley  v.  Oler,  444. 
Dinsmore  v.  Tidball,  223. 
Directors,    etc.,    of   Ashbury   Railway 

Carriage  &  Iron  Co.  v.  Riche,  193. 
Disbrow  v.  Durand,  17,  549. 
Disbrow's  Estate,  In  re,  247. 
District  T.   Gallaher,  407. 
District  of  Columbia  v.  Iron  Works, 

466. 
Ditchburn  v.  Goldsmith.  276. 
Ditson  V.   Ditson,   7. 
Divan  v.  Loomis,  375. 
Diversy  v.  Kellogg,  526. 
Dixon  V.  Bank,  56. 

V.  Clarke,  440. 

V.  Dunham,  398. 

V.  Fletcher,  442. 

V.  Merritt,  153. 

V.  Olmstead,   .540. 
D.  M.  Osborne  &  Co.  v.  Baker,  87. 
Doan  V.  Dow,  121. 
Doane  v.  Dunham,  463. 

V.  Railroad  Co.,  288,  291. 
Dob  V.  Halsey,  382. 
Dobbins  v.  Cruger,  57. 

V.  Hubbard,  188,  190,  191. 
Dobson  V.  Collis,  78,  79. 
Dodge  V.  Emerson,  436. 

V.  Favor,  398. 

V.  Insurance  Co.,  207,  208. 
Dodge's  Adm'r  v.  Moss,  357. 
Dodson  V.  McAdams,  17. 
Doe  v.  Burnham,  261. 

V.  Roberts,  154. 

v.  Thompson,  516. 
Doebler  v.  Waters,  110. 
Doering  v.  Kenamore,  371. 
Doherty  v.  Doe,  65,  SO. 

V.  Hill,  SO. 
Dohoney  v.   Dohoney,   269, 
Doles  v.  Hilton,  152. 
Doll  V.  Noble.  433. 
Dollraan  v.  King,  404. 
Dolph  V.  Hand,  166,  169. 

V.  Machinery  Co.,  315. 


580 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Domenico  v,  Ass'n,  420. 
Dominick  v.  Randolph,  180. 
Donaldson  v.  Farwell,  222,  239. 
Donelioe's  Appeal,  187. 
Donehoo,  Appeal  of,  272. 
Donellau  v.  Read,  80. 
Donelson  v.  Polk,  360,  373. 
Donovan  v.  Daiber,  279. 

V.  Oil  Co.,  396. 

V.  Richmond,  80. 
Dooiin  V.  Ward,  258. 
Doolittle  V.  Dininny,  65. 
Doon  V.  Ravey,  538. 
Doran  v.  Eaton,  225. 

V.  McConlogue.  250. 
Doremiis  v.  Henne.'^sy.  .350. 

V.  Lott,  18. 

V.  Selden,  385,  534. 
Doringh,  In  re,  367. 
Dorr  V.  Fisher,  465. 

V.  Munsell,  59. 

V.  School  Dist.,  389. 
Dorrill  v.  Eaton,  252. 
Don-is  V.  Sullivan,  76. 
Dorsey  v.  Gassaway,  438. 

V.  Kyle,  148. 

V.  Railroad  Co.,  374,  376. 

V.  Thompson,  148. 

V.  Wolff,  273. 
Dorwin  v.  Smith,  107,  112. 
Doty  V.  Crawford,  442. 

V.  Martin,  311,  478. 

V.  Wilson,  139,  140. 
Dougan  v.  Blocher,  94. 
Dougherty  v.  Catlett,  74. 

V.  Chesnutt,   86. 

V.  Seymour,  328. 
Doughten  v.  Ass'n,  237. 
Doughty  V.  Brass  Co.,  88. 

V.  Miller,  60. 
Douglas  V.  Matting,  198. 

V.  West,  54. 
Douglass  V.  Howland,  24. 

V.  Reynolds,  406. 
Dovale  v.   Ackermann,   123. 
Dow  V.  Bank,  476. 

V.  Haley,  264. 

V.  Sanborn,  222. 
Dowagiac  Mfg.  Co.  v.  Schroeder,  229. 
Dowdall  V.  Canndy,  219. 
Dowden  v.  Cryder,  514. 
Dowdy  V.  McLellan,  471. 
Dowling  V.  Lawrence,  224. 
Down  V.  Hailing,  541. 


Downer  v.  Chesebrough,  97. 
Downing  v.  Stone,  175. 

V.  Wherrin,  236. 
Dows  V.  Swett,  71. 
Doyle  V.  Church,  244,  549. 

V.  Dixon,  79,  113. 
Drake  v.  Seaman,  85,  87, 

V.  Wells,  76. 

V.  Whaley,  538. 

V.  White,  474. 

V.  Wise,   168. 
Drake's  Appeal,  249. 
Drake's  Lessees  v.  Ramsay,  166. 
Draper  v.  Fletcher,  367. 

V.  Hitt,  442. 

V.  Wood,  479. 
Drayton  v.  Reid,  430. 
Dreifus  v.  Salvage  Co.,  420. 
Drennan  v.  Douglas,  300. 
Dresser  v.  Dresser,  78. 
Drew  V.  Goodhue,  431. 

V.  Nunn,  37,  528. 
Driver  v.  Broad,  75. 
Drude  v.  Curtis,  172,  173. 
Drum  V.  Drum,  482. 
Drumheller  v.  Surety  Co.,  412. 
Drummond  v.  Humphreys,  508. 
Drumright  v.  Philpot,  506. 
Drury  v.  Briscoe,  108. 

V.  Wolfe,  271,  273. 

V.  Young,  89,  90,  91. 
Dryfus  v.  Burnes,  274. 
Dubose  V.  Wheddon,  160. 
Ducett  V.  W^olf,  91. 
Ducie  V.  Ford,  94. 
Dudley  v.  Briggs,  350. 
Duer  V.  James,  53,  54,  55. 
Duff  V.  Hopkins,  88. 

V.  Russell,  490. 
Duffy  V.  Shockey,  115. 
Dugan  V.  Gittings,  108,  114 

V.  Thomas,  2t>5. 
Duke  V.  Asbee,  291. 

V.  Harper,  297,  298. 
Duker  v.  Franz,  483. 
Dunbar  v.  Dunbar,  132. 

V.  Railway  Co.,  320. 

V.  Williams,  548. 
Duncan  v.  Baker,  462. 

V.  Niles,  518. 

V.  Topham,  26. 

V.  Willis,  416. 
Dung  V.  Parker,  518. 
Dungan  v.  Insurance  Co.,  441. 


Dunham  v.  Gould,  309. 

V.  Griswold,  123,  2i3. 

V.  Pitkin,  54. 
Dunlap  V.  Thorne,  71. 
Dunlop  V.  Higgins,  26,  31. 
Dunmore  v.  Alexander,  34. 
Dunn  V.  Bell,  278. 

V.  Houghton,  416. 

V.  Moore,  95. 
Dunne  v.  Herrick,  298. 
Dunton  v.  Brown,  150,  153,  165. 
Duplex  Safety  Boiler  Oo.  v.  Garden, 

433. 
Durant  v.  Rhener,  266. 
Durbin  v.  Kuney,  385. 
Durfee  v.  Abbott,  169. 

V.  O'Brien,  80. 
Durgln  V.  Express  Co.,  20. 

V.  Dyer,  261. 
Durham  v.  Hiatt,  77. 
Durkee  v.  Railroad  Co.,  204. 
Durkin  v.  Cobleigh,  394. 
Durment  v.  Tuttle,  471. 
Durnford  v.  Messiter,  349,  533. 
Durnherr  v.  Rau,  356,  357. 
Durr  V.  Chase,  395. 
Duryea  v.  Mayor,  etc.,  406. 
Dusenberry  v.  Hoyt,  140. 
Dusenbury  v.  Speir,  530,  531. 
Du  Souchet  v.  Dutcher,  524. 
Dutton  V.  Poole,  352. 
Duval  V.  Neal,  272. 

V.  Wellman,  303,  340,  540. 
Duvall  V.  Craig,  519. 

V.  Graves,  154. 
Dwight  V.  Blackmar,  510. 

V.  Hamilton,  307. 

V.  Insurance  Co.,  404. 

V.  Whitney,  515. 
Dwiuel  V.  Howard,  455. 
Dyett  V.  Coal  Co.,  191. 
Dykers  v.  Townsend,  84,  85. 
Dykes  v.  Bottoms,  272. 
Dynan  v.  McColloch,  120. 


Eadie  v.  Slimmon,  240,  241,  242 

V.  Williams,  495. 
Eagan  V.  Scully,  166. 
Eagan  Co.  v.  Johnson,  467. 
Eagle  V.  Smith,  40. 
Eakin  v.  Shultz,  357. 


CASES   CITED.  581 

[The  figures  refer  to  pages.] 

I  Eames  v.  Preston,  53. 
Earl  V.  Peck,  112. 
Earle  v.  Angell,  4,  107,  117. 
V.  Bickford,  545. 
V.  Coburn,  548. 
Y.  Oliver,  140. 
V.  Peale,  158. 
V.  Reed,  153,  160,  548. 
Earl  of  Aylesford  v.  Morris,  247. 
East  V.  Worthington,  225. 
East  Anglin  Rys.  Co.  v.  Railway  Co., 

193. 
Easter  v.  White,  70. 
Eastern   Advertising   Co.    v.    McGow, 

364. 
Eastern  0.  R.  Co.  v.  Hawkes,  489. 
x^astland  v.  Burchell,  499. 
East  Line  &  R.  R.  R.  Co.  v.  Scott,  78, 
Eastman  v.  Wright,  5,  415. 
Easton  v.  Jones,  448. 
East   Tennessee,   V.   &   G.   R.   Co.   v. 

Staub,  78. 
Eastwood  V.  Kenyon,  69,  109. 
Eaton  V.  Eaton,  182,  183. 

V.  Hill,  176. 

V.  Kegan,  263. 
Eaton,  Cole  &  Burnham  Co.  v.  Avery, 

231. 
Eaton's  Adm'r  v.  Perry,  187. 

V.  Smith,  403. 

V.  Truesdail,  516. 
Eberstein  v.  Willets,  236,  246. 
El>erts  V.  Selover,  507. 
Eblin  v.  Miller's  Ex'rs,  124,  126. 
Eccleston  v.  Clipsham,  382,  416. 
Echols  V.  Phillips,  53. 
Eckenrode  v.  Chemical  Co.,  444. 
Eeker  v.  McAllister,  124. 
Eckhert  v.  Pickel,  483. 
Eckman  v.  Railroad  Co.,  319. 
Eckstein  v.  Frank,  177. 
Edan  v.  Dudfield,  103. 
Eddy  V.  Capron,  283. 

V.  Davis,  452. 

V.  Herrin,  243. 

v.  Roberts,  111. 
Eddy's  Ex'r  v.  Northup,  272. 
Edelin  v.  Gough,  87. 

V.  Sanders,  59. 
Edelmuth  v.  McGarren,  328. 
Eden  v.  Chaffee,  69. 
Edgar  v.  Boies,  452. 
Edge  V.  Bumford,  372. 


582 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Edgell  V.  McLaughlin,  276. 

Edge  Moore  Bridge  Works  v.  Bristol 

County,  43. 
Edgerly  v.  Hale,  261,  284. 

V.  Shaw,  160. 
Edgerton  v.  Hodge,  104u 

V.  Mathews,  105. 
Edison  v.  Balka,  3G4. 
Edmond's  Case,  141,  142. 
Edmondston  v.  Drake,  24. 
Edmunds  v.  Illinois  Cent.  Ry.,  365. 

V.  Transportation  Co.,  200,  239. 

V.  Wallingford,  536. 
Mson  V.  Gates,  369. 

V.  Hudson,  222. 
Edwards  v.  Clement,  353. 

V.  Davenport,  182. 

V.  Estell,  301. 

V.  Hoeffinghofif,  342. 

V.  Insurance  Soc,  389. 

V.  Peterson,  366. 

V.  Railroad  Co.,  98,  100. 

V.  Handle,  283. 

V.  Scott,  368. 
Edwards  Co.  v.  Jennings,  323. 
Egan  V.  In.surance  Co.,  71. 
E.  G.  Dailey  Co.  v.  Can  Co.,  120. 
Eggleston  v.  Mason,  505. 

V.  Wagner,  28. 
Ehle  V.  Judson,  109. 

V.  Purdy,  382,  415. 
Ehrmanntraut  v.  Robinson,  84,  505. 
Eichelberger  v.  McCauley.  100. 
Eicholz  V.  Bannister,  470,  545. 
Eikenberry  v.  Edwards,  505. 
Eiler  v.  Crull,  499. 
Eisel  V.  Hayes,  310. 
Elder  v.  Schumacher,  182. 

V.  Thompson,  380. 
Elderkin  v.  Fellows,  442. 
Eldred  v.  Malloy,  276. 
Eldridge  v.  Holway,  512. 
Edectric   Appliance    Co.    v.    Guaranty 

Co.,  356. 
Electric  Lighting  Co.  of  Mobile  v.  El- 
der, 432,  433. 
Eley  V.  Assurance  Co.,  353. 
Eliason  v.  Henshaw,  27,  30. 
Elkhart  County  Lodge  v.  Crary,  287. 
Elkin  V.  Timlin,  70. 
Elkins  V.  Railroad  Co.,  522. 
Ellen  V.  Topp,  467. 
EUenbogen  v.  Griffey,  272. 
Eller  V.  Lacy,  380. 


Ellerman  v.  Stock  Yards  Co.,  307. 
Ellicott  V.  Turner,  79,  138. 
Elliot  V.  Barrett,  85. 

V.  Bradley,  516. 
Elliott  V.  Bell,  415. 

V.  Caldwell,  431, 

V.  Dycke,  3S9. 

V.  Horn,  152. 

V.  Sackett,  208. 

V.  Stocks,  500. 

V.  Swartwout,  244. 
Ellis  V.  Alford,  161,  168. 

V.  Andrews,  224. 

V.  Bray,  85. 

V.  Cary,  18. 

V.  Cory,  552. 

V.  Harrison,  35S. 

V.  Insurance  Co.,  63. 

V.  Mason,  437. 

V,  Murray,  68. 

V.  Smith,  300. 

V.  Thompson,  408. 
Ellison  V.  Water  Co.,  87. 
Ellmaker  v.  Ellmaker,  403. 
Ellsworth  V.  Cordrey,  510, 

V.  Fogg,  419. 
Elmbank,  The,  366. 
Elmer  v.  Loper,  356. 
Elmore  v.  Kiugscote,  105. 

V.  Stone,  103. 
Elrod  V.  Myers,  157. 
Elsass  V.  Harrington,  222. 
Eltham  y.  Kingsman,  276. 
Elting  V.  Vanderlyn,  123. 
Elves  V.  Crafts,  310. 
Elwell  V.  Shaw,  521. 
Ely  V.  Hallett,  214. 
Emancipation  of  Pocheleu,  152. 
Embrey  v.  Jemisou,  334,  .342. 
Emerson  v.  C.  Aultman  &  Co.,  87. 

V.  Mfg.    Co.,   511. 

V.  Miller,  502. 

V.  Slater,  107. 

V.  Townsend,  277,  331,  335. 
Emery  v.  Boyle,  413. 

V.  Candle  Co.,  315,  337. 

V.  Fowler,   405. 

V.  Kemplon,  326. 

V.  Lawrence,  365. 

V.  Tichout,  439. 
Emmel  v.  Hayes,  93. 
Emmeluth  v.  Ass'n,  383. 
Emmittsburgh   R.    Co.    v.    Donoghue, 
125,  130. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


583 


Emmons  v.  Murray,  168. 

V.  Scudder,  541. 
Empire  Steam  Pump  Co.  v.  Iiiman,  IG. 
Empress  Engineering  Co.,  In  re,  353. 
Enders  v.  Enders,  305. 
Engelhorn  v.  Reitliuger,  393. 
England  v.  Davidson,  127,  137. 

V.  Marsden,  53(3. 
Engle  V.  Cliipman,  282,  283. 
Englebert  v.  Troxell,  173. 
English  V.  Commission  Co.,  463,  467. 

V.  Smock,  273. 
English's    Ex'r    v.    McNair's   Adm'rs, 

405. 
Enuis  V.  Ennis,  73. 
Enos  V.  Sanger,  356,  357, 
Ensor  v.  Bolgiauo,  350. 
Enys  V.  Donnithorne,  383. 
Eppens,  Smith  &  Wiemann  Co.  v.  Lit- 

tlejohu,  408. 
Epperson  v.  Nugent,  158. 
Equitable  Co-op.  Foundry  Co.  v.  Her- 

see,  237. 
Equitable  Elndowment  Ass'n  v.  Fish- 
er, 22. 
Equitable  Gaslight  Co,  v.  Mfg.  Co.,  95. 
Erb  V.  Brown,  128. 
Erickson  v.  Fisher,  228. 
Erie  Co.  Sav.  Bank  v.  Coit,  122. 
Ernst  Y.  Crosby,  328. 
Erskine  v.  Adeane,  394. 
Erwin  v.  Erwin,  40,  44. 
Esch  V.  White.  70. 
Eskvidge  v.  Glover,  32,  33,  35. 
Esmay  v.  Gorton,  28. 
Espalla  V.  Wilson,  96. 
Esposits  V.  Bowden,  475. 
Estabrook  v.  Swett,  237. 
Esterly  v.  Eppelsheimer.  198. 
Esterly  Harvesting  Mach.  Co.  v.  Frol- 

key,  507. 
Etheredge  v.  Barkley,  21. 
Ether idge  v.  Vernoy,  366. 
Etscheid  v.  Baker,  357. 
Eugster  v.  West,  473. 
Evans,  In  re,  298,  299. 

V.  Bell,  298. 

V.  Evans,  304. 

v.  Gale,  238. 

V.  Ho  a  re,  89. 

V.  Horan,  182. 

V.  Jones,  276. 

V.  Kneeland,  217 

V.  Mfg.  Co.,  397. 


Evans  v.  Miller,  549. 

V.  Morgan,  178. 

V.  Railroad  Co.,  429. 

V.  Roberts,  76. 

V.  Trenton,  284. 
Eveleth  v.  Sawyer,  384. 
Everdell  v.  Hill,  355. 
Everett  v.  Dilley,  43. 

V.  Saltus,  515. 
Bverhart  v.  Searle,  302. 
Everingham  v.  Meighan,  124,  278,  333, 

342. 
Everitt  v.  Walker,  41. 
Everman  v.  Herndon,  83. 

v.  Hyman,  40. 
Everson  v.  Carpenter,  167. 

V.  Granite  Co.,  205. 
Ewell  V.  Daggs,  346. 
Ewing  V.  Burnet,  405. 

V.  Wilson,  390. 
Ewins  V.  Gordon,  119. 
Exall  V,  Partridge,  534. 
Excelsior   Needle   Co.   v.    Smith,   40i. 

486. 
Excelsior  Wrapper  Co.  v.  Messinger, 

120. 
Exchange  Bank  v.  Rice,  353-355. 
Exchange  Nat.  Bank  v.  Bank,  479,  511. 
Exhaust  Ventilation   Co.   v.   Railroad 

Co.,  433. 
Exhaust    Ventilator    Co.    v.    Railroad 

Co.,  433. 
Exley  V.  Berryhill,  274. 
Eyre  v.  Potter,  112. 


Fairbank  Canning  Co.  v.  Metzger,  464. 
Fairbanks  v.  Metcalf,  56. 

V.  Snow,  154,  245,  246. 
Fairchild  v.  Holly,  439. 

V.  Railroad  Co.,  343. 

V.  Rogers,  488. 
Fair    Haven     Marble    &    Mnrbleized 

Slate  Co.  V.  Owens,  54. 
Fairplay  School  Tp.  v.  O'Neal,  44. 
Faithorne  v.  Blaquire,  189. 
Falconbury  v.  Kendall,  133. 
Fall  v.  Hazelregg,  81. 
Fallowes  v.  Taylor,  59. 
Falls  of  Neuse  Mfg.  Co.  v.  Hendricks, 

86. 
Fanning  v.  Dunham.  274. 
Fausou  V.  Liinsley,  539. 


584 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Fant  V.  Miller,  345. 

Farebrotber  v.  Simuions,  90. 

Fareira  v.  Gabell,  342. 

Fargo  Gas  &  Coke  Co.  v.  Electric  Co., 

228. 
Fariua  v.  Home,  103. 
Faris  v.  King,  335. 
Farley  v.  Cleveland,  69. 

V.  Parker,  182. 
Farmer  v.  Kussell,  337. 
Farmers'  Ass'n  y.  Scott,  230. 
Farmers'   Co-op.   Trust  Co.   v.   Floyd, 

518. 
Farmers'  &  Mechanics'  Bank  v.  Ker- 

cbeval,  24. 
Farnam  v.  Brooks,  179. 
Farnbam  v.  Cbapmau,  71. 

V.  Davis,  72. 

V.  O'Brien,  109. 
Farnswortb  v.  Telegraph  Co.,  76. 
Farrar  v.  Bessey,  188. 

v.  Cburcbill,  232. 

v.  Toliver,  419-421. 
Farrer  v.  Close,  317. 
Farrington  v.  Meek,  508. 

V.  Ware,  238. 
Farrow  v.  Wilson,  476. 
Farwell  v.  Becker,  535. 

V.  Hancbett,  222. 

V.  Lowtber,  84. 

V.  Mather,  86. 

V.  Webster,  269. 
Fasler  v.  Beard,  412. 
Faulkner  v.  Adams,  55. 

V.  Drug  Co.,  43. 

V.  Hebard,  34. 

V.  Lowe,  5. 
Faulknor  v.  Swart,  369. 
Fauntleroy  v.  Wilcox,  219. 
Favor  v.  Fbilbrick,  325. 
Fawcett  v.  Freshwater,  12tj. 
Fawcett  &  Holmes,  In  re,  216. 
Fawkner  v.  Wall-Paper  Co.,  395. 
Fay  v.  Guynon,  362. 

V.  Smith,  481. 
Fayette  Co.  Sav.  Bank  v.  Steffes,  198. 
Featberston  v.  Hutchinson,  323. 
Feckheimer  v.  Baum,  222. 
Feeney  v.  Howard,  95. 
Feblinger  v.  Wood,  66,  69. 
Feiertag  v.  Feiertag,  17. 
Feldman  v.  Beier,  436. 

V.  Gamble,  437. 

V.  McGuire,  357. 


Feller  v.  Green,  241. 
Fellows  V.  Stevens,  133. 
Feltbouse  v.  Bindley,  22,  23. 
Felton  V.  Dickinson,  355. 

V.  Gregory,  242. 
Fenner  v.  Lewis,  501, 

V.  Mears,  363. 
Fenton  v.  Clark,  550. 

V.  White,  ICO. 
Ferguson  v.  Bell's  Adm'r,  163,  169. 

V.  Bobo,  178. 

V.  Carringtou,  235,  549. 

V.  Coleman,  275. 

V.  Crick,  74. 

V.  Davidson,  368. 

V.  Sutpben,  270. 

V.  Teel,  470. 

V.  Wilson,  192. 

V.  Yunt,  339. 
Ferguson's  Appeal,  113. 
Fergussou  v.  Norman,  265. 
Ferren  v.  ^Joore,  499. 
Fen-ier  v.  Storer,  26,  31. 
Ferris  v.  Brewing  Co.,  307,  356. 

V.  Land  Co.,  145. 
Ferry  v.  Moore,  523. 
Ferst  V.  Bank,  69,  71. 
Fessenden  v.  Mussey,  84. 

V.  Taft,  343. 
Fetrow  v.  Wiseman,  151,  153,  154. 
Fidelity    Ins.    &   Safe-Deposit   Co.    v. 

Railway  Co.,  259. 
Fidelity  &  Casualty  Co.  of  New  York 

V.  Grays,  294. 
Fidelity  &  Casualty  Co.  of  New  York 

V.  Eickboff,  294. 
Field  V.  Cbipley,  2M. 

V.  Dale.  138. 

V.  Herrick,  163. 

V.  Holland,  438. 

V.  Leiter,  403,  405. 

V.  Mayor,  366. 

V.  New  York.  366. 
Figbtmaster  t.  Levi,  245. 
Fildew  V.  Besley,  473. 
Filipini  v.  Stead,  423. 
Filley  v.  Pope,  463,  464. 
Fillieul  V.  Armstrong,  430.) 
Finch  V.  Barclay,  263. 
V.  Finch,  72. 

V.  Mansfleld,  23. 
Findley's  Ex'rs  v.  Findley,  403. 
Findon  v.  Parker.  297.  298. 
Finegan  v.  Tbeisen,  249. 


Finger  v.  Hahn,  307.                                I 

Fiuk  ^ 

V.  Cox,  108. 

V. 

Smith,   125. 

Finlay  v.  Chirney,  378. 

Finn  v.  U.  S.,  145. 

Finney  v.  Apgar,  100. 

Firestone  v.  Werner,  222,  223. 

First  Baptist  Church  v.  Insurance  Co., 

63,  78. 

First  Nat.  Bank  v.  Bryan,  245. 

V. 

Buchanan,  435. 

V. 

Bynum,  369. 

V. 

Cauatsey,  273. 

V. 

Carriage  Co.,  238. 

V. 

Carson,  483. 

V. 

Case.  436. 

V. 

Chalmers,  70,  71. 

V. 

Clark,  29,  37. 

V. 

Dunn,  393. 

V. 

Gaines,  500. 

V. 

Gay,  503. 

V. 

Gerke,  403. 

V. 

Hall,  21,  29,  36,  346,  422. 

V. 

Hamor,  380. 

V. 

Hart,  38. 

V. 

Hendrie,    288. 

V. 

Johns,  199. 

V. 

Johnson,  437. 

V. 

Kimberlands,  366. 

V. 

Kingsley,  266. 

V. 

North,   394. 

V. 

Spear,  452, 

V. 

State,  284. 

V. 

Taliaferro,  399. 

V. 

Watkins,  23. 

V. 

Wolff,  481. 

First 

Universalist   Church  v.   Pungs, 

lis. 

Fish  V 

.  Chapman,  429. 

V. 

Cleland,  206,  223,  226. 

Fishack  v.  Ball,  401. 

Fishburne   v.   Ferguson's   Heirs,   180, 

251. 

Fishel 

V.  Bennett,  326,  329. 

Fishel 

1  V.  Gray,  323. 

Fisher 

V.  Anderson,  272. 

V. 

Bartlett,  113. 

V. 

Bishop,  247,  250. 

V. 

Bridges,  333. 

V. 

Hall,  .53. 

V. 

Hildreth,  339. 

V. 

Hoover,  212. 

V. 

Hopkins,  381. 

V. 

Insurance  Co.,  295. 

CASES  CITED.  585 

[The  figures  refer  to  pages.] 

Fisher  v.  Lighthall,  221. 

V.  May's  Heirs,  122. 

V.  Mellen,  229. 

V.  Mowbray,  153. 

V.  Shattuck,  240,  242,  245. 
Fisher  P]lectric  Co.  v.  Iron  Works,  289. 
Fisheries  Co.  v.  Lennen,  307. 
Fitch  V.  Johnson,  373. 

V.  Jones,  334. 

V.  Snedaker,  40. 

V.  Sutton,  133. 

V,  Water  Co.,  352. 
Fitts  V.  Hall,  176,  177. 
Fitz  V.  Bynum,  238. 
Fitzgerald  v.  Bank,  402. 

V.  Dressier,  71. 

V.  Peck,  226. 

V.  Reed,    183. 
Fitzhugh  V.  Wilcox,  182. 
Fitzsimmons  v.  Allen's  Adm'r,  94. 
Fivey  v.  Railroad  Co.,  197. 
Flach  V.  Gottschalk  Co.,  184. 
Flack  V.  Garland,  491. 
Flagg  V.  Gilpin,  278. 

V.  Inhabitants,  267. 
Flagler  v.  Lipman,  71. 
Flanagin  v.  Hambleton,  435. 
Flanders  v.  J"'ay,  426. 
Flandrow  v.  Hammond,  470. 
Flanigan  v.  Minneapolis,  241. 

V.  Seelye,  441. 
Flaniken  v.  Neal,  375. 
Flarsheim  v.  Brestup,  437. 
Fleekenstein    Bros.    Co.    v.    Fleeken- 

stein,  364. 
Fleetwood  v.  Bro^^Ti,  201. 
Flegal  V.  Hoover,  419. 
Fleit  V.  Murton,  520. 
Fleming  v.  Beck,  487. 

V.  Gilbert,  425. 

V.  Hanley,  236. 
Flenner  v.  Flenner,  72,  73. 
Flersheim  v.  Cary,  323. 
Fletch  V.  Dyche,  412. 
Fletcher  v.  G rover,  385,  534. 

V.  Livingston,  76. 

V.  Peck,  7. 
Flexner  v.  Dickerson,  154. 
Flight  V.  Bolland,  163. 

v.  Booth,  216. 

V.  Reed,  142. 
Flinn  v.  Mowry,  445. 

V.  St.  John.  269. 
Flint  V.  Cadenasso,  356,  357. 


586 


CASES  CITED, 
[The  figures  refer  to  pagea.] 


Florance  v.  Adams,  510. 

Florida  v.  Morrison,  218. 

Florida,  0.  &  P.  li.  Co.  v.  State,  288. 

Flower  v.  Baruekoff,  75. 

V.  Sadler,  2S4. 
Floyd  Acceptance,  The,  145. 
Flynn  v.  Allen,  238. 

V.  Columbus  Club,  270. 

V.  Dougherty,  99. 

V.  Hurlock,  130. 
Foalces  v.  Beer,  130. 
Foard  v.  Grinter's  Ex'rs,  123. 

V.  McComb,  218. 
Foley  V.  Cowgill,  56. 

V.  Crow,  216,  236,  466. 

V.  Dwyer,  453. 

V.  Greene,  242,  293,  340. 

V.  Mason,  398. 

V.  Piatt,  283. 

V.  Storrie,   128. 
Follansbee  v.  Johnson,  357. 
Follett  V.  Buyer,  369. 
Fonda  v.  Burton,  393. 

V.  Van  Home,  150,  154,  505. 
Fond  du  Lac  Harrow  Co.  v.  Haskins, 

415. 
Fonseca    v.    Steamship    Co.,    20,    343, 

345. 
Fontaine  v.  Bush,  103. 
Foote  V.  Hambrick,  483. 

V.  Nickerson,  303,  322. 
Forbes  v.  Hagman,  503. 

V.  McDonald,  283. 
Force  V.  Dutcher,  500. 
Ford  V.  Beach,  403. 

V.  Cotesworth,  472. 

V.  Harrington,  340. 

V.  Hennessy,  249. 

V.  Mitchell,  436. 

T.  Phillips,  167. 

V.  Tiley,  448. 

V.  Tirrell,  399. 
Fordyce  v.  Nelson,  366. 
Foreman  v.  Bigelow,  235. 
Forest  Oil  Co.,  Appeal  of,  442. 
Formby  v.  Pryor,  286,  287. 
Forrester  v.  Flores,  93. 
Forsyth  v.  Day,  .504. 

V.  Ryan,  367. 

V.  Woods,  301. 
Forsyth  Mfg.  Co.  v.  Castlen,  280. 
Forsythe  v.  State,  300. 
Fort  V.  Allen,  74,  75. 
Fortunato  v.  Patten,  370. 


Ft.  Worth  City  Co.  v.  Bridge  Co.,  193. 
Fosdick  V.  Insurance  Co.,  219. 

V.  Van  Arsdale,  294. 
Foshay  v.  Ferguson,  240-243. 
Foss  V.  Cummings,  342. 

V.  Hildreth,  186. 

V.  Richardson,  471. 
Foster  v.  Bartlett,  540. 

V.  Bates,  503,  504. 

V.  Burton,  385,  534. 

V.  Dawber,  419. 

V.  Dupre,  537. 

V.  Green,  541. 

V.  Hooper,  381. 

V.  Ley,  535. 

V.  McKinnon,  198. 

V.  Maginnis,  ^. 

V.  Paine,  422. 

V.  Peyser,  221. 

V.  Smith,  522. 

V.  Thurston,  329. 

V.  Wooten,  269. 
Fountain  v.  Menard,  75. 
Fountain  Coal  Co.  v.  Phelps,  510. 
Fouutaine  v.  Bush,  97,  103. 
Fowke  V.  Bowie,  437. 
Fowkes  V.  Ass'n,  406. 
Fowle  V.  Freeman,  43. 

V.  Park,  309,  312. 
Fowler,  Appeal  of,  343. 

V.  Brooks,   126. 

V.  Callan,  297. 

T.  Fowler,  401. 

v.  Insurance  Co.,  214,  277 

V.  McCann,  233. 

V.  Trust  Co.,  273. 

V.  Woodward,  208,  404. 
Fox  V.  Ass'n,  296. 

V.  Davis,  303. 

V.  Kitton,  444. 

V.  Rogers,  326. 

V.  Tabel,  199. 
Fox  Solid  Pressed  Steel  Co.  v.  Schoen, 

308. 
Fradley  v.  Hyland,  523. 
Fraley  v.  Bentley,  45. 
Fraley's  Appeal,  367. 
Frame  v.  August,  69. 
France  v.  Smith,  275. 
Francis  v.  Barry,  86. 
Francisco  v.  Smith,  364. 
Franco-Texan  Land  Co.   v.   Chaptlve, 

147. 
Franklin  v.  Long,  98,  464. 


CASES  CITED. 
[Tho  figures  refer  to  pages.] 


587 


Franklin  v.  Miller,  466. 

Franklin  Min.  Co.  v.  Harris,  430. 

Frank  v.  Eltringbam,  84. 

Franklin  v.  Ivong,  98. 

Franklin  Ins.  Co.  v.  Hamill,  421,  425. 

Frank's  Appeal,  114. 

Frary  v.  Rubber  Co.,  428. 

V.  Sterling,  80. 
Fraser  v.  Backus,  122. 
Frazer  v.  Gates,  78. 

V.  Howe,  8G. 

V.  Miller,  439. 
Frazier  v.  Massey,  153. 

V.  Warfield,  346,  399. 
Frear  v.  Evertson,  362. 

V.  Hardenbergb,  75. 
Freed  v.  Mills,  44. 
Freeman  v.  Boston,  39. 

V.  Bridger,  157,  158. 

V.  Kieffer,  237. 

V.  Roland,  176. 

V.  Taylor,  466. 
Freer  v.  Lake,  403. 
Freetb  v.  Burr,  454. 
French  v.  McAndrew,  153,  175. 

V.  Parker,  310,  311. 

V.  Pearce,  407. 

V.  Shoemaker,  240. 

V.  Vining,  224. 
French   Lumbering  Co.   v.   Theriault, 

182. 
French's  Heirs  v.  French,  186. 
Frenzel  v.  Miller,  218. 
Frerking  v.  Thomas,  357. 
Frevall  v.  Fitch,  53. 
Freyman  v.  Knecht,  464. 
Fridge  v.  State,  441. 
Frieberg  v.  Treitschke,  257. 
Pried  v.  Insurance  Co.,  22. 
Friend  v.  Lamb,  235. 

V.  Miller,  293,  390. 
Friend  Bros.  Clothing  Co.  v.  Hulbert, 

237. 
Friend  &  T.  Lumber  Co.  v.  Miller,  487. 
Frisbee  v.  Hoffnagle,  471. 
Frisby  v.  Ballance,  208. 
Frith  V.  Lawrence,  37. 
Fritzler  v.  Robinson,  201. 
Front  St.  R.  Co.  v.  Butler,  451. 
Frost  V.  Belmont,  285. 

r.  Gage,  257,  337. 

V.  Johnson,  492. 

V.  Knight,   444,  445. 
Fruin  v.  Railway  Co.,  397,  412. 


Fruitt  V.  Anderson,  181. 
Fry  V.  Patterson,  436. 

V.  Piatt,  85. 
Fullam  V.  Inhabitants,  .")17,  521. 
Fuller  V.  Brown,  476,  550. 

V.  Dame,  288. 

V.  Duren,  538. 

V.  Green,  335,  480,  482. 

V.  Kemp,  132,  492. 

V.  Roberts,  244. 
Fuller  ton  v.  Sturges,  482. 
Fullmer  v.  Poust,  453. 
Fulton  V.  Loughlin,  122. 
Funk  V.  Hough,  107,  117. 
Furenes  v.  Mickleson,  147. 
Furry  v.  O'Connor,  231. 

G 

Gaar,  Scott  &  Co.  v.  Green,  128. 
Gabbey  v.  Forgeus,  240. 
Gaffney  v.  Hayden,  104,  175,  553. 
Gage  V.  Ewing,  494. 

V.  Fisher,  301,  323. 

V.  Tirrell,  403. 
Gaines,  Succession  of,  152. 
Gainesville  Nat.  Bank  v.  Bramberger, 

231. 
Gaither  v.  C"larke,  271. 
Galbes  v.  Girard,  145. 
Galbreath  v.  Galbreath,  95. 
Gale  V.  Leckie,  256. 

V.  Nixon,  82. 

V.  Tappan,  528. 
Galey  v.  Mellon,  365. 
Gallagher  v.  Gallagher,  93. 

V.  Sharpless,  431. 
Gallinger  v.  Traffic  Co.,  514. 
Galloway  v.  Holmes,  549. 
Gallup  V.  Lichter,  494. 
Gait  V.  Galloway,  528. 
Galusha  v.  Sherman,  125,  241. 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Short. 

320. 
Galvin  v.  Mackenzie,  102. 
Galway  v.  Shields,  91,  552. 
Gambril  v.  Doe,  272. 
Gambs  v.  Sutherland's  Estate,  330. 
Gamewell     Fire-Alarm     Tel.     Co.     v. 

Crane,  308. 
Gammill  v.  Johnson,  223. 
Gangwere's  Estate,  183. 
Gano  V.  Aldridge,  40"). 
Garberino  v.  Roberts,  448. 


588 


CASES  CITED. 


[The  figures 


Gardels  v.  Kloke,  88. 
Gardiner  v.  Harbeck,  484. 

V.  Morse,  258. 
Gardner  v.  Caylor,  422. 

V.  Gardner,  500. 

V.  Lane,  202. 

V.  Leek,  439. 

V.  Ogden,  510. 

V.  Peaslee,  523. 

V.  Randell,  75. 

V.  Smith,  366. 

V.  Walsh,  481,  482. 
Garfield  v.  Paris,  101,  102. 
Garland  v.  Harrington,  366. 
Garner  v.  Cook,  162. 
Garnett  v.  Kirkman,  123. 
Garrard  v.  Frankel,  401. 
Garretson  v.  Vanloon,  409. 
Garrett  v.  Moss,  258. 

V.  Trabue,  528. 
Garrey  v.  Stadler,  149. 
Garrison  v.  Electrical  Works,  233. 

T.  U.  S.,  406. 
Garst  V.  Harris,  316,  413. 
Gartner  v.  Hand,  22. 
Gartrell  v.  Stafford,  89. 
Garvin's  Adm'r  v.  Williams,  240. 
Gasper  v.  Heimbach,  392. 
Gates  V.  Brower,  501. 

V.  Dundon,  244. 

V.  Nelles,  42. 

V.  Raymond,  238. 

V.  Steele,  132. 
Gatling  v.  Newell,  238. 
Gatzow  V.  Buening,  317. 
Gauch  V.  Insurance  Go.,  397. 
Gault  V.  Brown,  102. 

V.  Stormount,  85. 
Gavagan  v.  Bryant,  193. 
Gavin  v.  Bishoff,  501. 

V.  Burton,  151,  152. 
Gaw  V.  Bennett,  280. 
Gay  V.  Ballou,  159,  548. 

V.  Botts,  109. 
Gaylord  v.   Soragen,  329,  330. 
Gazlcy  v.  Price,  452,  459. 
(Jcddos"  Appeal,  225,  226. 
Geelan  v.  Reid,  68. 
Geer  v.  Frank,  298,  323. 

V.  School  Dist.,  383. 
Geib  T.  Reynolds,  201. 
Geiger  v.  Railroad  Co.,  429. 
Geipel  v.  Smith.  428. 
Geisse  v.  Franklin,  509. 


refer  to  pages.] 

Gelpcke  v.  Dubuque,  324. 
Gelston  v.  Sigmund,  44. 
Genereux  v.  Sibley,  150,  158,   174. 
Genet  v.  Canal  Co.,  408. 
Geox'ge  v.  Conhaim,  43. 

V.  Johnson,  223. 
Georgia  Pac.  R.  Co.  v.  Brooks,  236. 
Gere  v.  Clark,  381. 
Gerhart  v.  Peck,  90. 
Gerlach  v.  Skinner,  323. 
Gerli  v.  Mfg.  Co.,  455. 
German  American  Ins.  Co.  v.  Insur- 
ance Co.,  398. 
German  Fire  Ins.  Co.  v.  Roost,  403. 
German  Sav.  Bank  v.  Roofing  Oo.,  24. 
German  State  Bank  v.  Light  Co.,  356, 

357. 
Gerrard  v.  Frankel,  205. 
Gerrish  v.  Glines,  480. 
Gerry  v.  Stimson,  57. 
Gerz  V.  Weber,  17. 
Getchell  v.  Maney,  366. 
Gettysburg    Nat.    Bank    v.    Chisholm, 

479. 
Ghegan  v.  Young,  374. 
Gibbins  v.  Asylum   District,  43. 
Gibbons  v.  Bente,  446. 

V.  Ellis,  392. 

v.  Gouverneur,  277. 
Gibbs  V.  Gas  Co.,  288,  309,  342. 

V.  Linabury,  198. 

V.  Smith,  258. 
Gibbs  &  Sterrett  Mfg.  Co.  v.  Bruck- 

er,  269. 
Gibson  v.  Carruthers,  365. 

V.  Cooke,  366. 

V.  Cranage,  432. 

V.  Hardware  Co.,  502. 

V.  Holdeu,  375. 

V.  Holland,  83. 

V.  Partee,  56. 

V.  Pelkie,  201. 

V.  Porter,  375. 

v.  Soper,  182-185. 

V.  Stearns,  274. 

V.  Stevens,  516. 

V.  Trust  Co.,  359. 
Giddings  v.  Bank,  245. 
Gieske  v.  Anderson,  359. 
GifEord  v.   Corrigan,  54,  356-358. 

v.  Thorn,  116. 
Gilbert  v.  Baxter,  29. 

V.  Deshon,  501. 

V.  Holmes,  298,  527. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


589 


Gilbert  v.  McGinnis,  400. 

V.  Plow  Co.,  392. 

V.  Sanderson,  357. 

V.  Sykes,  276. 
Gilclirist  v.  Manning,  237. 
Giles  V.  Edwards,  471,  545. 
Gill  V.  Biclvnell,  90. 

V.  Ferris,  307. 

V.  Lumber  Co.,  453. 

V.  Weller,  367. 
Gillaspie  v.  Kelly,  483. 
Gilleland  v.  Failing,  298. 
Gillespie,  In  re,  370. 

V.  Edmonston,  35. 
Gillespie  Tool  Co.  v.  Wilson,  431. 
Gillet  V.  Bank,  405,  406. 
Gillett  V.  Bank,  404. 

V.  Logan  Co.,  292. 
Gilley  v.  Gilley,  548. 
Gilliglian  v.  Boardman,  87. 
Gilliland  v.  Phillips,  346. 
Gillis  V.  Cobe,  432. 

V.  Goodwin,  174,  175. 
Gilman  v.  Hall,  550. 

T.  Kibler,  22. 

V.  Peck,  435. 

V.  Rives,  380. 
Gilmore  v.  Bissell,  273. 

V.  Courtney,  460, 

V.  Ferguson,  272. 

V.  Lewis,  288. 

V.  Pope,  516. 

V.  Wilbur,  537,  538. 
Gilpin  V.  Howell,  522. 
Gilson«v.  Spear,  176. 
Ginn  v.  Security  Co.,  273. 
Given  v.  Lemoine,  515. 
Glacius  V.  Black,  431. 
Glabolm  v.  Hays,  211. 
Glaubolm  v.  Hays,  464. 
Glascock  V.  Lyons,  537. 
Glasgow  v.  Hobbs,  113. 
Glass  V.  Beach,  108. 

V.  Hulbert,  93-95. 
Glasscock  v.  Glasscock,  53. 

V.  Hazell,  538. 
Glaze  V.  Insurance  Co.,  54. 
Glazebrook  v.  Woodrow,  451. 
Gleason  v.  Dyke,  140. 

V.  Railroad  Co.,  257,  301. 
Glencoe  Land  &  Gravel  Co.  v.  Com- 
mission Co.,  350. 
Glenn  v.  Bank,  335. 

V.  Cauby,  375. 


Glenn  v.  Marbury,  362. 
v.  Savage,  548. 
V.  Shannon,  542. 
Glidden  v.  Chamberlin,  141. 
Globe  Milling  Co.  v.  Elevator  Co.,  399. 
Gloucester   Isin-Glass   &   Glue   Co.  v. 

Cement  Co.,  316,  469. 
Glover  v.  Ott's  Adm'r,  159. 
Glover  &  Co.  v.  Ott's  Adm'r,  155,  156. 
Glyn  V.  Baker,  541. 
Godcharles  v.  Wigeman,  260,  399. 
Goddard  v.  Binney,  100. 

V.  Donaha,  93. 

V.  O'Brien,  492. 
Goebel  v.  Linn,  128. 
Goldbeck  v.  Bank,  381. 
Goldberg  v.  Lavinski,  81. 
Golding  V.  Golding,  249. 
Goldman  t.  Oppenheim,  258. 
Goldsborough  v.  Cradie,  38,  369. 

V.  Orr,  452. 
Goldsby  v.  Robertson,  138. 
Goldsmith  v.  Guild,  410,  4©. 
Goldstein  v.  White,  462. 
Goltra  V.  Sanasack,  207. 
Gompertz  v.  Bartlett,  200,  469. 

V.  Denton,  404.  540,  546. 
Gooch  V.  Faucett,  345. 

V.  Holmes,  100. 
Good  V.  Cheesman,  133. 

V.  Daland,  316. 

V.  Elliott,  276, 

V,  Herr,  207. 
Goodal  V.  Thurman,  223,  300. 
Goodall  V.  Brewing  Co.,  330, 

V.  Stewart,  237. 
Goode  V.  Harrison,  161. 
Goodlet  V.  Kelly,  54. 
Goodloe  V.  Godley,  513. 
Goodman  v,  Alexander,  157. 

V.  Chase,  68. 

V.  Eastman,  481. 

V.  Henderson,  308. 
Goodnow  V.  Lumber  Co.,  106. 
Goodrich  v.  Lathrop,  238. 

V.  Reynolds,  273. 

V.  Tenney,  292. 
Goodsell  V.  Myers.  153,  167. 
Goodspeed  v.  Fuller,  390,  546. 

V.  Plow  Co.,  37. 
Goodwin  v.  Bishop,  274. 

V.  Cunningham,  369. 

V.  Follett,  129. 

V.  Gilbert,  64. 


590 


Goodwin  v.  Griffis,  549. 

V.  Merrill,  16. 

V.  Screw  Co.,  192. 

V.  Trust  Co.,  230. 
Goodyear  v.  Adams,  182. 
Gorden  v.  Robertson,  483. 
Gordon  v.  Avery,  86. 

V.  Bank,  385. 

V.  Bulkeley,  500. 

V.  Butler,  224,  225. 

V.  Casey,  291. 

V.  Gordon,  129. 

V.  Parmelee,  224. 
Gore  V.  Gibson,  18G,  187. 

V.  Lewis,  399. 
Gorham  v.  Keyes,  293. 
Gorman  v.  Salisbury,  426. 
Gormely  v.  Ass'n,  226. 
Gormley,  Appeal  of,  125. 
Gorrell  v.  Water  Supply  Co.,  352,  356. 
Gorringe  v.  Reed,  340. 
Goshen  Nat.  Bank  v.  Bingham,  372. 
Goss  V.  Ellison,  132. 

V.  Nugent,  426. 

V.  Stevens,  502,  506 

V.  Whitney,  266. 
Gotwalt  V.  Neal,  240,  337,  540. 
Goucher  v.  Ass'n,  215. 
Goudy  V.  Gebhart,  60. 
Gould  V.  Banking  Co.,  94. 

V.  Bourgeois,  470. 

V.  Gould,  382,  416. 

V.  Kendall,  290. 

V.  Mansfield,  74. 

V.  Murch,  472,  476. 

V.  Railroad  Co.,  494. 

V.  Wise,  53. 
Goulding  v.  Davidson,  141. 
Gove  V.  Biddleford,  489. 
Governor  v.  Daily,  497. 
Gowan's  Adm'r  v.  Gowan,  338. 
Gower  v.  Capper,  117. 

V.  Emery,  508. 

V.  Stuart,  69. 
Grabenhorst  v.  Nicodemus,  33. 
Grace  v.  Hale,  159. 

V.  Lynch,  80. 

v.  Mitchell,  508. 
Gradle  v.  Warner,  84,  105,  441. 
Grady  v.  Insurance  Co.,  511. 
Graeme  v.  Adams,  272. 
(rraff  V.  Buchanan,  21. 

V.  Fitch,  76. 
Graft  V.  Loucks,  95. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Grafton  v.  Cummlngs,  84,  85. 
Gragg  V.  Brown,  516. 
Graham  v.  Burch,  249,  253. 

V.  Duckwall,  517. 

V.  Dyster,  54L 

V.  Holt,  500. 

V.  Johnson,  370. 

V.  McReynolds,  298. 

V.  Marks,  245. 

V.  Stiles,  224. 

V.  Tilford,  369. 
Graham  Paper  Co.  v.  Pembroke,  370. 
Grain  v.  Aldrich,  366. 
Grandin  v.  Grandiu,  112,  123,  125. 
Grand  Lodge  I.  O.  G.  T.  v.  Farnham, 

119. 
Grand  Tower  &  C.  G.  R.  Go.  v.  Wal- 
ton, 390. 
Grant  v.  Grant,  17,  74,  226. 

V.  Johnson,  452,  465. 

V.  Ludlow,  364. 

V.  McGrath,  269. 

V.  McLachlin,  343. 

V.  Railway  Co.,  129. 

V.  U.  S.,  120. 

V.  Wolf,  68. 
Grape    Creek   Coal    Co.    v.    Spellman, 

490. 
Grasselli  v.  Lowden,  115. 
Graves   v.    The    Calvin    S.    Edwards, 
428. 

V.  Johnson,  329,  345. 

V.  Legg,   451,   458,   461,   465,   466. 

V.  Tucker,  56. 
Gray  v.  Cary,  103. 

V.  Clark,  403. 

V.  Handkinson's  Heirs,  471. 

V.  Herman,  69. 

V.  Hook,  283. 

V.  McReynolds,  257. 

V.  Mathias,  301. 

V.  Otis,  497. 

V.  Pearson,  359. 

V.  Smith,  461. 
Graybill  v.  Brugh,  33,  119. 
Great  Britain   Steamboat  Co.,   In   re, 

340. 
Great  Northern  R.  Oo.  v.  Witham.  35, 

120, 
Great  Western  Turnpike  Co.  v.  Sha- 

fer,  78. 
Grebert-Borgnis  v.  Nugent,  486. 
Green  v.  Armstrong,  76. 

V.  Brooking,  99. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


591 


Green  v.  Cole,  43. 

V.  Corrigan,  340. 

V.  Uovillaud,  410. 

V.  Gilbert,   477.   .'mO. 

V.  Greeu,  1G6,  173. 

V.  Greenbank,  177. 

V.  Groves,  94. 

T.  iDSurauce  Co.,  215. 

V.  Langdon.  130. 

V.  Lewis,  105. 

V.  Merriani,  103. 

V.  Moffett,  399. 

y.  Paul,  420. 

V.  Kowortb,  247,  249. 

V.  Solomon,  69. 

V.  State,  145. 

V.  Stone,  401. 

V.  Stuart,  469. 

V.  Wells,  425. 

V.  Wilding,  150. 

V.  Wilkie,  198. 
Greenburg  v.  Early,  430. 
Greenby  v.  Wilcocks,  362. 
Greene  v.  Bartholomew,  365. 

V.  Bateman,  204. 

V.  Burton,  68. 

V.  J'irst  Parish  in  Maiden,  137. 

V.  Greene,  249. 

V.  Hatch,  369. 

V.  Latcham,  69,  72. 

V.  Tyler,  399. 
Greentield  Sav.  Bank  v.  Simons,  510. 
Greenfield's  Estate,  248. 
Greenleaf  v.  Allen,  374. 
Greenough  v.  Eichholtz,  72. 
Greenstine  v.  Borchard,  400. 
Greenville  v.  Waterworks  Co.,  83. 
Greenwood  v.  Curtis,  343,  344. 

V.  Law,  100. 

V.  Sheldon,  356. 

V.  Strother,  81. 

V.  Sutclitte,  442. 
Greer,  Hawes  &  Co.  v.  Severson,  291. 
Gregg  V.  Garrett,  83. 
Gregory  v.  King.  291. 

v.  Lee,   160. 

V.  Littlejohn,  391. 

V.  Logan,  87. 

V.  Pierce,  190. 

V.  Thomas,  478. 

V.  Walker,  54. 

v.  Wattowa,  280. 

V.  Wendell,  199,  278,  332,  342. 


Greig  v.  Kiordnn,  3(17. 
Greton  v.  Smith,  rir)2. 
Grey  v.  Tubbs,  409. 
Ciribben  v.  :Maxwell,  183. 
Gridley  v.  Bane,  239. 
Griel  v.  Lomax,  223. 

V.  Solomon,  141. 
Grierson  v.  Mason,  393. 
Grieser  v.  Hall,  274. 
Griffin  v.  Colver,  486,  488. 

v.  Ogletree,  408. 

V.  O'Neil,  205. 
Griffith  V,  Godey,  251. 

V.  Publishing  Co.,  365. 

V.  Schwenderman,  153. 

V.  Wells,  260,  261,  265. 
Griffiths  V.  Owen,  104. 
Grigg  V.  Landis,  409,  462. 
Griggs  V.  Moors,  453. 
Grigsby  v.  Combs,    (4. 

V.  Stapleton,  224. 
Grim  v.  Iron  Co.,  355. 
Grime  v.  Borden,  303. 
Grindrod  v.  Wolf,  116. 
Grinnell  v.  Telegraph  Co.,  320. 
Grissell  v.  Robinson,  534. 
Griswold  v.  Butler,  182. 

v.  Eastman,  58. 

V.  Hazard,  207. 

V.  Kailroad  Co.,  360. 

V.  Waddington,  148. 
Grizewood  v.  Binne,  279. 
Groff  v.  Hansel,  238. 

V.  Kohrer,  218. 
Groner  v.  Smith,  53. 
Gross  V.  Cadwell,  41. 

V.  Criss,  435. 
Groton  v.  Inhabitants,  282. 
Grove  v.  Dubois,  516. 

V.  Rentch,  393. 
Grubb  V.  Suit,  378. 
Grumley  v.  Webb,  510. 
Grundies  v.  Kelso,  96. 
Grymes  v.  Sanders,  208,  236. 
Guardian  Fire  &  Life  Assur.  Co.  v. 

Thompson,  217,  223. 
Guckenheimer  v.  Angevine,  238. 
Guerand  v.  Bandelet,  115. 
Guerln  v.  Stacy,  413. 
Guernsey  v.  Cook,  302. 
Guild  V.  Butler,  131,  492. 

V.  Hull,  179. 
Guilford  School  Tp.  v.  Roberts,  232. 


592 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Guilleaume  v.  Rowe,  240,  242. 

Gulf,  C.  &  S.  F.  II.  Co.  V.  Eddins,  319. 

V.  MoiTis,  28'J. 

V.  Settegast,  8S. 

V.  Wilbanks,  320. 
Gulick  V.  Grover,  501,  505. 
Gump  V.  Halberstadt,  69. 
Gunby  v.  Sluter,  216. 
Guiidlach  v.  Fischer,  525. 
Gunn  V.  Cantine,  51G. 
Gunnings  v.  Iloj^al,  125. 
Guntber  v.  Guntber,  107. 
Gurney  v.  Howe,  435. 

V.  Womersley,  469,  545. 
Guthing  V.  Lynn,  44. 
Guthman  v.  Keam,  441. 
Gutbrie  v.  Anderson,  88. 

V.  Basbline,  368. 

V.  Morris,  160. 

V.  Murpby,  157. 

V.  Railroad  Co.,  527. 
Gutta-Percba  &  R.  Mfg.  Co.  v.  Hous- 
ton, 531,  533. 
Guyman  v.  Burlingame,  291. 
Guyon  v.  Lewis,  521. 
Gwinn  v.  Simes,  269. 

V.  Wbitaker's  Adm'x,   438. 
Gwynne  v.  Hitcbner,  428. 

H 

Haacke   v.   Knights   of   Liberty,   270, 

337. 
Haas  V.  Myers,  27. 

V.  Railroad  Co.,  428. 
Haase  v.  Jsonnemacber,  463,  467. 
Habricht  v.  Alexander,  147. 
Hackenberry  v.  Shaw,  272. 
Hacker's  Appeal,  52. 
Hackley  v.  Headley,  244. 
Hadcock  v.  Osmer,  230. 
Hadley  v.  Baxendale,  486. 

V.  Bordo,  436. 

V.  Clarke,  475. 

V.  Improvement  Co.,  221,  222. 

V.  Reed,  108. 
Hadlock  v.  Brooks,  299. 
Haebler  v.  Myers,  537. 
Haeuni  v.  Blcisch,  54,  225. 
Hagadorn  v.  Lumber  Co.,  68. 
Hager  v.  Catlin,  2S2. 
Hagorty  v.  Lee,  375. 

V.  Lock  Co.,  175. 

V.  White,  403. 


Haigh  V.  Brooks,  114,  405. 

Haines  v.  Lewis,  280. 

V.  Tucker,  447. 
Haines'  Adm'r  v.  Tarrant,  158,  236. 
Haldeman  v.  Insurance  Co.,  273. 
Hale  V.  Brown,  179. 

V.  Cole,  247. 

V.  Cravener,  120. 

V.  Gerrish,  167,  168. 

V.  Hale,  74,  88,  273. 

V.  Rice,  138. 

V.  Sheehan,  407. 

V.  Bpaulding,  381. 
Hales  V.  Freeman,  534,  535. 
Hall  V.  Alford,  72. 

y.  Bank,  402. 

V.  Bishop,  264. 

V.  Bryan,  141. 

V.  Butterfleld,  174. 

V.  Corcoran,  269. 

V.  Crowley,  412. 

V.  Daggett,  273. 

V.  Dyson,  258. 

V.  Gavitt,  282,  333. 

V.  Haggart,  271. 

V.  Hall,  54. 

V.  Hinks,  238. 

V.  Huntoon,  512,  517. 

V.  Insurance  Co.,  368,  441, 

V.  Leigh,  383,  415. 

V.  McArtbur,  470. 

V.  Mayor  of  Swansea,  192. 

V.  Railroad  Co.,  509. 

V.  Richardson,  436. 

V.  Sbultz,  541. 

V.  Solomon,  75,  391. 

V.  Storrs,  397. 

V.  Thayer,  416. 

V.  Wallace,  90. 

V.  Warren,  180. 

V.  White,  ~M'5. 
Halladay  v.  Hess,  395. 
llallam  v.  Huffman,  258. 
Halle  V.  Newbold,  376. 
Hallen  v.  Ruuder,  75. 
Hallenbeck  v.  Kindred,  375. 
Hallett  V.  Gordon,  382. 

V.  Novion,  261. 
Halley  v.  Troester,  184. 
Hall  Mfg.  Co.  V,  Supply  Co.,  113. 
Hallock  V.  Insurance  Co.,  34. 
Halloran  v.  Whitcomb,  362. 
Hal  luck  V.  Bush,  55. 
Halpiu  v.  Insurance  Co.,  442. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


693 


Halpin  V.  Stone,  391. 
Halsa  V.  Halsa,  87. 
Ham  V.  Smith,  2D1. 
Hambly  v.  Railroad  Co.,  410. 
Hamer  v.  Sidway,  107,  114. 
Hamet  v.  Litcher,  200. 
Hamill  v.  Ashley,  514. 

V.  Hall,  96. 
Hamilton  v.  Austin,  268. 

V.  Gray,  298. 

V.  Hamilton,  304. 

V.  Insurance   Co.,   22,  26,   34,  35, 
295. 

V.  McPherson,  487. 

V.  Park  &  McKay  Co.,  201. 

V.  Railroad  Co.,  319. 

V.  Rogers,  365. 

V.  Thrall,  451. 

V.  Watson,  217. 

V.  Wood,  480. 
Hamlin  v.  Abell,  230. 

V.  Drummond,   69. 

V.  Sears,  503. 

V.  Stevenson,  150. 
Hammer  v.  Schoenfelder,  487. 
Hammond  v.  Hopping,  141. 

V.  Hussey,  111. 

V.  Peunock,  238. 

V.  Winchester,  28. 
Hammons  v.  State,  267. 
Hampden  v.  Walsh,  275,  276,  339. 
Hanauer  v.  Doane,  330. 
Hanchett  v.  Ives,  125. 

V.  Jordan,  269. 

V.  Yunker,  517. 
Hand  v.  Marble  Co.,  361. 

V.  Slaney,  156. 
Handforth  v.  Jackson,  237,  307. 
Handley  v.  Heflin,  385. 
Handrahan  v.  O'Regan,  107. 
Handy   v.   Publishing   Co.,    268,    322, 

346. 
Haney  v.  Caldwell,  430. 
Hanford  v.  McNair,  500,  506. 
Hankins  v.  Ottinger,  277. 
Hanks  v.  Barron,  129. 

V.  Brown,  275. 

V.  Naglee,  300, 
Hanna  v.  Wilcox,  250. 
Hannibal  H.  Chandler  &  Co.  v.  Knott, 

420. 
Hannon  v.  Hounihan,  73. 
Hanover  Nat  Bank  v.  Bank,  341. 

V.  Blake,  258. 
Clark  Cont.(2d  Ed.)— 38 


Hansard  v.  Robinson,  484. 
Hanscom  v.  Drullard,  228,  230. 
Hansen  v.  Erickson,  462. 
Hansen  v.  Berthelsen,  250. 

V.  Gaar,  Scott  &  Co.,  125. 

V.  Myer,  374. 

V.  Rounsavell,  437. 

V.  Steam  Heating  Co.,  455. 
Hanson  v.  Armitage,  103. 

V.  Crawley,  483. 

V.  Marsh,  98,  105. 

V.  Nelson,  69. 
Hapgood  V.  Rosenstock,  490. 

V.  Shaw,  459. 
Happy  V.  Mosher,  436. 
Harbart's  Case,  381. 
Harbinger,  The,  398. 
Harbord  v.  Cooper,  364. 
Hard  v.  Burton,  422. 

V.  Seeley,  450. 
Harder  v.  Com'rs,  464. 
Hardesty  v.  Graham,  131. 
Harding  v.  Glucose  Co.,  308. 

V.  Tifft,  437. 
Hardmau  v.  Booth,   200. 
Hardwick  v.  Insurance  Co.,  63. 
Hardy  v.  Jones,  337. 

v.  Waters,  154. 
Hardy  Implement  Co.  v.  Iron  Works, 

364. 
Hargan  v.  Purdy,  264. 
Harger  v.  Worrail,  335. 
Hargrove  v.  Adcock,  85. 
Hargroves  v.  Cooke,  87. 
Harker  v.  Oonrad,  437. 
Harkreader  v.  Clayton,  55. 
Harlan  v.  Berry,  383. 
Harland  v.  Lilienthal,  264. 
Harlow  v.  Curtis,  28. 

V.  Putnam,  469. 
Harman  v.  Howe,  404. 
Harmon  v.  Bird,  471. 

V.  Harmon,  182,  240. 
Harmony   v.   Bingham,  243,  244,  472. 
Harms  v.  McCormick,  358. 
Hamer  v.  Dipple,  153. 

V.  Killing,  167. 
Harney  v.  Owen,  153. 
Harnor  v.  Groves,  545. 
Harper  v.  Graham,  131. 

v.  Harper,  78. 

V.  Young,  335. 
Harralson  v.  Stein,  511, 
llarran  v.  Foley,  205. 


594 


Harrell  v.  Miller,  76. 
Harriman,  The,  472. 

V.  Bmerick,  134. 

V.  Harriman,   126,  129. 
Harrington  v.  Doclj  Co.,  302,  509. 

V.  Harrington,  50. 

V.  Higgins,  452. 

V.  Iron- Works  Co.,  476,  550. 
Harrington's  Adm'r  v.  Crawford,  283. 
Harris,  Ex  parte,  25. 

V.  Alcock,  222. 

V.  Carmody,  245. 

V.  Carter,  127. 

V.  Cassaday,  124,  12b. 

V.  Ctiamberlain,  283. 

V.  Frank,  68. 

V.  Harper,  65. 

V.  Harris'  Ex'r,  59. 

V.  Heackman,  374. 

V.  Nickerson,  42. 

V.  Pepperell,  401. 

V.  Railroad  Co.,  20. 

V.  Regester,  53. 

V.  Rickett,  389. 

V.  Roberts,  288. 

V.  Roofs  EX'r,  2^. 

V.  Ross,  162. 

V.  Runnels,  260. 

V.  Scott,  28. 

V.  Sharpies,  431. 

T.  Smith,  17. 

V.  Taylor,  188. 

V.  Tyson,  221. 

V.  White,  277. 

y.  Wicks,  274. 
Harrisburg  Bank  v.  Tyler,  355. 
Harris'  Case,  22,  26,  27,  34. 
Harris  Co.  v.  Campbell,  366. 
Harrison  v.  Adcock,  170. 

V.  Baldwin,  343. 

V.  Cage,  117. 

V.  Close,  129. 

V.  Colton,  270. 

V.  Fane,  156. 

V.  Lodge,  420. 

V.  McHenry,  504,  510. 

V.  Morrison,  398. 

V.  Otiey,  184. 

V.  Railway  Co.,  473. 

V.  Refining  Co.,  307. 
Harrison  Mach.  Works  v.  Coquillard, 

541. 
Harrow   Spring   Co.   v.   Harrow   Co., 
392, 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Harson  v.  Pike,  38,  39. 
Hart  V.  Alexander,  423. 

V.  Deamer,  182. 

V.  Mills,  16,  137,  442. 

V.  Prater,  156. 

V.  Strong,  130,  244. 
Hartford  Bridge  Co.  v.  Ferry  Co.,  406. 
Hartford  Fire  Ins.  Co.  v.  Horr,  295. 

V,  Railroad  Co.,  320,  346. 

V.  Wilcox,  476. 
Hartford  Protection  Ins.  Co.  v.  Har- 

mer,  210,  214. 
Hartley  v.  Decker,  457. 

V.  Rice,  136,  276,  303.- 

V.  Vamer,  68. 
Hartley's  Appeal,  527. 
Hartman  v.  Kendall,  169. 
Hartness  v.  Thompson,   162. 
Hartranft  v.  Uhlinger,  271. 
Hartung  v.  Witte,  374,  376. 
Hartupee  v.  Crawford,  453. 

V.  Pittsburg,  16,  453. 
Hartwell  v.  Hartwell,  283. 

V.  Young,  80,  92,  95. 
Hartzell  v.  Crumb,  394. 
Harvey  v.  Briggs,  163,  173. 

V.  Dale,  469. 

V.  Doty,  279. 

V.  Duffey,  23,  32. 

V.  P"'acey,  42. 

V.  Gibbons,  134. 

V.  Harris,  202. 

V.  Johnston,  15. 

V.  Merrill,  276,  278,  279,  334,  342. 

V.  Mount,  249. 
Harwood  v.  Jones,  70. 
Haseltine  v.  Smith,  299. 
Haskell  v.  Tukesbury,  394. 

V.  Wright,  376. 
Haskins  v.  Royster,  350. 

v.  Warren,  400, 
Haslack  v.  Mayers,  453. 
Hassie  v.  Congregation,  365. 
Hasted  v.  Dodge,  131. 
Hastelow  v.  Jackson,  339. 
Hastings  v.  Dollarhide.  153,  154,  163, 
164. 

V.  Lovejoy,  425. 

V.  Vaughn,  52. 
Hatch  V.  Douglass,  278. 

V.  Hatch's  Estate,  168. 

V.  McBrien,  99. 

v.  Mann,  127,  136,  257. 

V.  Taylor,  513,  514. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


595 


Hatchett  v,  Bnddeley,  189. 
HatLaway  v.  Hagau,  211. 

V.  Moran,  346. 
Hatsall  V.  Griffith,  382. 
Hatzfield  v.  Gulden,  286. 
Haubert  v.  Mausshardt,  422. 
Hauser  v.  Harding,  45. 
Hausmann  v.  Burnbam,  80. 
Havanna  Press-Drill  Co.  v.  Asburst; 

129. 
Haven  v.  Foster,  207. 

V.  Neal,  235. 

T.  Russell,  432. 
Havens  v.  Havens,  18. 
Haviland  v.  Halstead,  304. 

V.  Sammis,  74. 

V.  Willets,  226. 
Hauk  V.  Brownell,  227. 
Hawes  v.  Smitb,  107,  401. 
Hawken  v.  Bourne,  499. 
Hawkes  v.  Saunders,  180. 
Hawkeye  Ins.  Co.  v.  Brainard,  284. 
Hawkins  v.  Ball's  Adm'r,  477. 

V.  Grabam,  432,  433. 

V.  Lange,  505. 

V.  McGroarty,  506. 
Hawkinson  v.  Harmon,  22. 
Hawks  V.  Weaver,  273. 
Hawley  v.  Beverley,  534. 

V.  Bristol,  365. 

V.  Keeler,  448. 

V.  Moody,  92,  553. 
Hawortb  v.  Montgomery,  264. 

V.  Norris,  391. 
Haws  V.  Tiernan,  494. 
Hay  V.  Green,  362. 
Hayden  v.  Souger,  38,  39. 
Haydock  v.  Haydock's  Ex'rs,  250. 
Hayes  v.  Crane,  519. 

V.  Fine,  76. 

v.  Gross,  473. 

V.  Insurance  Co.,  129. 

V.  Jackson,  87. 

V.  O'Brien,  33. 
Hayner  v.  Cburcbill,  514. 
Haynes  v.  Baptist  Cburch,  473. 

v.  Bennett,  170. 

V.  Dorman,  324. 

V.  Mason,  79. 

V.  Nice,  437. 

V.  Ruud.  323,  337,  540. 
Hayney  v,  Coyne,  298. 
Hays  V.  McCIurg,  436. 


Hayward  v.  Andrews,  364. 

V.  Barker,  141,  188. 

V.  Leonard,  431,  550. 

V.  Mfg.  Co.,  285. 
Hazard  v.  Day,  267. 

V.  Insurance  Co.,  202,  542, 

V.  Irwin,  60. 

V.  Loring,  441. 
Hazelrigg  v.  Donaldson,  343. 
Hazlett  V.  Sinclair,  376. 
Head  v.  i/iggon,  33. 

V.  Insurance  Co.,  192.' 

V.  Tattersall,  428. 
Headley  v.  Sbaw,  452. 
Heady  v.  Boden,  141. 
Heany  v.  Scbwartz,  496. 
Heaps  V.  Dunbam,  242, 
Heard  v.  Pulaski,  437,  440. 
Hearn,  In  re,  152. 

V.  Cullen,  349,  533. 
Heath  v.  Blake,  483. 

V.  Hall,  36  <. 

V.  Heath,  78. 

V.  Nutter,  500,  506. 

V.  Stevens,   174. 

V.  West,  171. 
Heaton  v.  Angler,  422. 

V.  Dennis,  297,  300. 

v.  Eldridge,  97. 

V.  Norman  Co.'s  Bank,  245. 

V.  Norton  Co.,  243. 
Heaver  v.  Lanaban,  446. 
Hebb's  Case,  22. 
Hecbt  V.  Batcbeller,  208. 

V.  Caugbron,  356. 
Heckman  v.  Swartz,  540. 
Hedden  v.  Griffin,  524. 

V.  Roberts,  379. 
Hedges  v.  Wallace,  330. 
Hedin  v.  Institute,  227. 
Heermans  v.  Ellsworth,  368. 
Heffelflnger  v.  Hummel,  122. 
Heffron  v.  Armsby,  90. 
Hefner  v.  Vandolab,  504. 
Hefter  v.  Cahn,  257. 
Hegler  v.  Faulkner,  166. 
Heilbutt  V.  Hickson,  463. 
Heirn  v.  Carrou,  492. 
Heist  V.  Blaisdell,  272. 
Hellams  v.  Abercrombie,  267. 
Helms  V.  Crane,  126. 

V.  Franciscus,   303. 
Helt  v.  Smitb,  71. 


596 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Hemingway  t.  Stansell,  492. 
Hemmenway  v.  Stone,  3S4,  415. 
Hemmer  v.  Cooper,  227. 
Hendee  v.  Pinkerton,  52,  53. 
Henderson  v.  Cass  Co.,  442. 
V.  Coke  Co.,  24,  45. 

V.  Fox,  mo. 

V.  Gibbs,  239. 

V.  Hammond,  380. 

V.  Henshall,  378. 

V.  McGregor,  179,  180. 

V.  Palmer,  293. 

V.  Perkins,  86. 

V.  Railway  Co.,  367. 

V.  Stevenson,  20. 
Henderson  Bridge  Co.  v.  McGratli,  40, 

44. 
Hendrick  v.  Lindsay,  356. 
Hendricks  v.  Goodrich,  537. 

V.  Rasson,  54. 
Hendy  v.  Ivier,  110. 
Henequin  v.  Naylor,  222. 
Henkel  v.  Pape,  204. 
Hennersdorf  v.  State,  268. 
Hennessey  v.   Woohvorth,  490. 
Hennessy  v.  Bacon,  122. 

V.  Metzger,  412. 
Henninger  v.  Heald,  238. 
Hennington  v.  State,  266. 
Henricus  v.  Englert,  521. 
Henry  v.  Bisbop,  389. 

V.  Coats,  481. 

V.  Flagg,  273. 

V.  Heeb,  505. 

V.  Heni-y,  72. 

V.  Root,  150,  153,  168. 

V.  Sausom,  274. 

V.  Wells,  92. 
Henry  Bill  Pub.  Co.  v.  Utley,  437. 
Hensel  v.  Ass'n,  271. 
Henthom  v.  Praser,  26. 

V.  Frazer,  34,  35. 
Hentz  V.  Jewell,  280. 

V.  Miller,  200. 
Heuzler's  Estate  v.  Bossard,  18. 
Herbert  v.  Tnrball,  150. 
Herostreit  v.  Beckwith,  367. 
Herendeen  Mfg.  Co.  v.  Moore,  68. 
Herman  v.  Jencbner,  339. 
Hernandez  v.  Insurance  Co.,  407. 
HerresboEE  v.  Boutineau,  307,  309. 

V.  Misch,  426. 
Herrick  v.  Newell,  95. 


Herriman  v.  Menzies,  317. 
Herring  v.  Dorell,  124. 

V.  Scaggs,  505. 
Hersey  v.  Bennett,  439. 
Hershey  v.  Luce,  407. 
Hertzler  v.  Geigley,  337. 
Hertzog  v.  Hertzog,  530. 
Herzog  v.  Heyman,  469. 

V.  Sawyer,  425. 
Hess  V.  Griggs,  389. 
Hess'  Estate,  In  re,  53,  111. 
Hessick  v.  Hessick,  250. 
Hewes  v.  Bayley,  382. 
Hewett  V.  Currier,  125. 

V.  Dement,  274. 

V.  Jones,  198. 
Hewitt  V.  Anderson,  40. 

V.  Lumber  Co.,  396. 
Heyman  v.  Dooley,  110. 
Heysham  v.  Dettre,  75. 
Heyward  v.  Lomax,  438. 
Heywood  v.  Perrin,  75,  403. 

V.  Tillson,  350. 
Heywoi-th  v.  Knight,  43. 
Hibbard  v.  McKindley,  404. 

V.  Peek,  398. 
Hibbert  v.  Aylotfs  Heu-s,  94. 
Hibbette  v.  Baines,  305. 
Hickey  v.  O'Brien,  45,  120. 

V.  Stewart,  494. 
Hickman  v.  Hall's  Adm'rs,  158. 

V.  Haynes,  421,  426. 

V.  Shimp,  428. 
Hicks  v.  Aylesworth,  462. 

V.  Burhans,  138. 

V.  Cram,  380. 

V.  Stevens,  227,  233,  390. 
Hieronymus  v.  Ass'n,  346. 
Higert  v.  Asbury  University,  118. 
Higgen's  Case,  478. 
Higgins,  In  re,  152. 

V.  Dale,  141. 

V.  Hallock,  68. 

V.  Hill,  117. 

Y.  Lessig,  40,  41. 

V.  Murray,  100. 

V.  Pitt,  258. 

v.  Railroad  Co.,  455. 

V.  Senior,  85,  90,  394. 
Highberger  v.  Stiffler,  248. 
Highstone  v.  Burdette,  393. 
Hilborn  v.  Buckuam,  243. 
Hilderbrand  v.  Fine  Arts  Co.,  462. 


CASES  CTTED. 
[The  flsuros  refer  to  pages.] 


697 


Hill  r.  Anderson,  175. 

V.  Baker,  147. 

V.  Blake,  65,  426. 

V.  Buckley,  204. 

V.  Duluth,  407. 

V.  Dunham,  2tJ9. 

V.  Evans,  397. 

V.  Freeman,  337. 

V.  Hill,  18. 

V.  Hooper,  79. 

V.  Jamieson,  79. 

V.  Kidd,  276. 

V.  McMchol,  54. 

V.  McPherson,  369. 

V.  Mfg.  Co.,  406. 

V.  Miller,  249. 

V.  Morse,  50. 

V.  Nelms,  169. 

V.  Robblns,  439. 

V.  Spear,  330. 

V.  Whidden,  391. 
Hills  V,  Ludwig,  74. 

V.  Street,  540. 

V.  Sughrue,  202. 
Hilton  V.  Burley,  439. 

V.  Eckersley,  318. 

V.  Houghton,  269. 

V.  Shepherd,  168. 

V.  Woods,  300. 
Himrod  Furnace  Co.  v.  Railroad  Co., 

84. 
Hinchman  v.  Lincoln,  102. 

V.  Weeks,  100,  231,  237. 
Hinckley  v.  Steel  Co.,  449,  468. 
Hind  V.  Holdship,  113. 
Hindmarch  v.  Hoffman,  539,  541. 
Hindrey  v.  Williams,  473. 
Hines  v.  Board,  241. 
Hingston  v.  L.  P.  &  J.  A.  Smith  Co., 

228. 
Hinkley  v.  Fowler,  358. 
Hinton  v.  Locke,  397. 
Hirth  V,  Graham,  76. 
Hissong  V.  Railroad  Co.,  319. 
Hitchcock  V.  Coker,  310. 
Hittson  V.  Brown,  264. 
Hoadley  v.  McLain,  105. 

V.  McLaine,  105,  137. 
Hoag  V.  Graves,  511. 
Hoagland  v.  State,  145. 
Hoare  v.  Rennie,  454,  455. 
Hobbs  V.  Brick  Co.,  419. 

V.  McLean,  405. 

V.  Wliip  Co.,  16. 


Hobough  V.  Murphy,  141,  142. 
Hochmark  v.  Richler,  273. 
Hochster  v.  De  la  Tour,  444,  445. 
Hodge  V.  Sloan,  307,  376. 
Hodges  V.  Kowing,  89. 

V.  Nalty,  119,  268. 

V.  .Sublett,  21,  43. 

V.  Temple,  330. 
Hodson  V.  Terrill,  339. 
Hoe  V.  Sanborn,  224,  463. 
Hofflin  V.  Moss,  302. 
Hoffman  v.  Coombs,  126. 

V.  Insurance  Co.,  403,  406. 

V.  Noble,  238. 

V.  Vallejo,  297. 
Hogan  V.  Curtin,  303. 

V.  Kyle,  495. 

V.  Moore,  246. 

V.  Stophlet,   127. 
Hogencamp  v.  Ackerman,  424. 
Hogg  V.  Laster,  18. 
Holbrook  v.  Burt,  369,  370. 

V.  Connor,  227. 

V.  Wright,  516. 
Holcomb  V.  Weaver,  302. 
Holden  v.  Cosgrove,  333. 

Y.  Curry,  154. 

V.  Hardy,  260. 

V.  O'Brien,  266. 

V.  Pike,  174. 
Holfenstein's  Estate,  37. 
Holladay  v.  Patterson,  288. 
Holler  V.  Richards,  83. 
Holley  V.  Anness,  489. 
Hollins  V.  Fowler,  130,  200. 
Hollis  V.  Burgess,  83,  86,  88. 

V.  Edwards,  81. 

V.  Francois,  188,  190. 

V.  Pond,  53. 
Hollister  v.  Abbott,  50. 

V.  Stewart,  493. 
Holloway  v.  Jacoby,  407. 

V.  Lowe,  298. 

V.  McNear,  400. 
Holloway's  Assignee  v.  Rudy,  141. 
Holman  v.  Johnson,  337,  345,  546. 
Holmden  v.  Janes,  94. 
Holmes  v.  Bank,  271. 

V.  Bell,  478. 

V.  Blogg,   174,  257. 

V.  Boyd,  126. 

V.  Gregg,  442. 

V.  Halde.  2G4. 

Y.  Hall,  402. 


698 


Metal 


Holmes  v.  Hill,  242. 

V.  Insui-ance  Co.,  405. 

V.  McDonald,  54. 

T.  Rice,  150,  162. 

V.  Richet,  295. 

V.  Ti-umper,  479,  481. 

V.  Williamson,  534. 
Holmes  &  Griggs  Mfg.  Co.  v 

Co.,  193. 
Hoist  V.  Stewart,  227,  228,  229. 
Holston  Salt  &  Piaster  Go.  v.  Camp- 
bell, 407. 
Holt  V.  Ely,  539. 

V.  Kirby,  274. 

V.  O'Brien,  324. 

V.  Pie,  393. 

V.  Ross,  521. 

V.  Ward    Clarencieux,    117,    154, 
162,  163. 

V.  Ward  Clemencieux,  118. 
Holton  V.  Noble,  225. 
Holtz  V.  Schmidt,  542. 
Home  Nat.  Bank  v.  Waterman,  528. 
Homer  v.  Perkins,  225. 

V.  Shaw,  462. 

V.  Thwing,  177. 

V.  Wallis,  482. 
Honck  V.  Muller,  454. 
Honeyman  v.  Jarvis,  123. 

V.  Marryat,  28. 
Hood  V.  Exploration  Co.,  468. 

V.  Hartshorn,  295. 

V.  Todd,  203. 
Hooker  v.  Knab,  342. 
Hooper  v.  Hooper,  70,  99,  407. 

V.  Brundage,  369. 

V.  Edwards,  267. 

V.  Payne,  162. 
Hooper's  Case,  478. 
Hoover  v.  Sidener,  464. 
Hopewell  v.  McGrew,  407. 
Hopkins  v.  Mollinieux,  497., 

V.  Stefan,  270. 

V.  U.  S.,  313. 
Hopper  V.  Ludlum,  149. 
Hopson  V.  Boyd,  182. 
Horn  V,  Bank,  479. 

V.  Luddington,  93. 

V.  Miller,  375. 
Hornby  v.  Close,  317. 
Home  V.  Niver,  30. 

V.  Railway,  487. 
Horner  v.  Frazier,  74,  80. 

V.  Graves,  307. 


CASES  CITED. 
[Th«  figures  refer  to  pages.] 

Horner  v.  Horner,  393. 
Horsfall  v.  Thomas,  233. 
Horst  V.  Wagner,  482. 
Horton  v.  Bauer,  486. 

V.  Bloedom,  240,  241. 

V.  Lee,  227. 

V.  McCarty,  90. 

V.  Riely,  535. 

V.  Rohlff,  405. 
Hosford  V.  Kanouse,  355. 
Hoshor  V.  Kautz,  114. 
Hoskinson  v.  Elliott,  381. 
Hosier  v.  Hursh,  491. 
Hosmer  v.  McDonald,  407. 

V.  Wilson,  444,  447. 
Hostetter  v.  Hoi  linger,  355. 

V.  Park,  399. 
Hotchkln  v.  Bank,  222. 
Hough  V.  Brown,  28. 

V.  Kugler,  414. 

V.  Rawson,  459. 
Hough's  Adm'r  v.  Hunt,  252. 
Houghtaling  v.  Ball,  97,  105. 
Houghton  V.  Francis,  481. 

V.  Houghton,  248. 
Houghwout  T.  Boisaubin,  15,  31,  35. 
Houldsworth  v.  Glasgow  Bank,  235. 
Houlton  V.  Dunn,  285. 

V.  Nichol,  286. 
Housding  v.  Solomon,  432. 
House  V.  Alexander,  156,  158,  168. 

V.  McKenney,  339. 

V.  Waterworks  Co.,  352. 
Household  Ins.  Co.  v.  Grant,  26,  27. 
Housekeeper  Pub.  Co.  v.  Swift,  421. 
Houser  v.  Lament,  96. 

V.  McGinnas,  534. 
Houston  V.  Sledge,  426. 
Houston  &  T.  C.  R.  Co.  v.  McCarty, 

203. 
Hovey  V.  Brown,  505. 

V.  Chase,  180. 

V.  Hobson,  180,  182,  183,  185,  186. 

V.  Page,  378. 

V.  Storer,  286. 
How  V.  Kemball,  87. 
Howard  v.  Daly,  26,  30,  444,  485,  526. 

V.  Gould,  223. 

V.  Independent  Church,  291. 

V.  Industrial  School,  42. 

V.  McCall,  437. 

V.  Mfg.  Co.,  488. 

V.  Railroad  Co.,  420,  421. 


V.  SimpUius,  luG. 


V. 
V. 


V. 
V. 


Howard  v.  Walker,  399. 

V.  Whitt,  (J5. 
Howard  Ins.  Co.  v.  Owen's  Adm'r,  G3. 
Howe  V.  Batcbelder,  7G. 

V.  Hayward,  104. 

V.  Litchfield,  333. 
Norm,  17. 
O'Malley,  117. 

V.  Railroad  Co.,  508. 

V.  Smith,  104. 
Taggart,  123. 
Wildes,  188. 
Howell  V.  Ooupland,  476. 

V.  Graff,  514. 

V.  Kelly,  75. 

T.  Stewart,  330,  331. 
Howe  Mach.  Co.  v.  Bryson,  488. 

V.  Simler.  52  U. 
Howes  V.  Barker,  478. 
Howe    Sewing    Mach.    Co.    v.    Rosen- 
steel,  477, 
Howland  v.  Coffin,  374. 

V.  Lounds,  40. 
Howley  v.  Whipple,  204. 
Howson  V.  Hancock,  338. 
Hoxsie  V.  Lumber  Co.,  491. 
Hoyle,  In  re,  83. 
Hoyt  V.  Byrnes,  441. 

V.  Casey,  155,  157, 

V.  Wilkinson,  164,  165,  175 
Hoyt  Mfg.  Co.  V.  Turner,  237. 
Hubbard  v.  Bank,  441. 

Y.  Belden,  476,  550. 

V,  Coolidge,  111. 

V.  Oummings,  168,  171. 

V.  Freiburger,  275. 

V.  Greeley,  56. 

V.  Martin,  207,  544. 

V.  Miller,  115,  307,  324. 

V.  Moore,  329. 

V.  Rowell,  488, 

V.  Ten  Brook,  514,  521. 

V.  Weare,  231,  232. 
Hubbell  V.  Flint,  329. 

V.  Palmer,  28. 
Huber  v.  Guggenheim,  225. 

V.  Johnson,  298,  299. 

V.  Zimmerman,  513. 
Huck  V.  Flentye,  15. 
Huckestein  v.  Kelly,  421. 
Huckins  v.  Hunt,  257. 
Hudson  V,  Hudson,  17. 

V.  McCai'tney,  295. 

T.  Revett,  56. 


CASES  CITED. 
[The  figures  refer  to  pagea.] 

Hudson  V.  Weir,  100. 
Huff  V.  Logan,  132. 

V.  Watkins,  350. 
Huffman  v,  Hughlett,  539. 

V.  Wyrlck,  18. 
Huggins  V.  People,  246. 
Hughes  V.  Boone,  346. 

T.  Fisher,  69. 


699 


V,  Griswold,  273. 

V.  Gross,  476. 

V.  Mfg,  Co.,  227. 

V.  Nolte,  488. 

V.  Wamsuita  Mills,  475. 

V.  Watson,  170. 
Hugo,  The,  319. 
Huguennin  v.  Baseley,  249. 
Hull  V.  Johnson,  493. 

V.  Louth,  185,  186. 

V.  Pitrat,  490. 
Hull's  Assignees  v.  Connolly,  157. 
Hull   Coal  &  Coke  Co.  v.  Coke  Co., 

404,  410,  456.  » 

Hulme  V.  Tenant,  190. 
Hulse  V.  Machine  Co.,  312. 

V.  Young,  515. 
Humbert  v.  Brisbane,  86,  93. 
Humble  v.  Hunter,  199,  360,  522. 

V.  Mitchell,  100. 
Hume  V.  U.  S.,  206. 
Humphrey  v.  Merriam,  229,  230,  232. 
Humphreys  v.  Railroad  Co.,  392. 
Hunkins  v.  Hunkins,  94. 
Hunt  V.  Bate,  137. 

V.  Brown,  491. 

V.  Douglass,  511. 

V.  Gray,  482,  483. 

V,  Hecht,  103. 

V.  Higman,  26. 

V.  Hunt,  303. 

V.  Jones,  97. 

V,  Knickerbacker,  261. 

V,  Lipp,  93. 

V.  Livermore,  403. 

V,  Mann,  362. 

V.  Peake,  151,  154,  163, 

V.  Rabitoay,  185, 

V.  Rousmanier,  206,  527-529. 

V,  Shackleford,  369, 

V.  Silk,  545. 
Hunter  v.  Anthony,  405. 

V.  Giddings,  522. 

V.  Mills,  94. 

V.  Nolf,  283. 

V.  Parker,  506. 


600 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Hunter  v.  Tolbard,  186. 

V.  Walters,  197. 

V.  Warner,  442. 

V.  Wetsell,  104. 
Hunter's  Adm'rs  v.  Miller's  Ex'rs,  403.^ 
Hunting  v.  Downer,  469. 

V.  Emmart,  367. 
Huntington  v.  Knox,  200. 
Huntley  v.  Mathias,  513. 
Hurd  V.  Bovee,  395. 

V.  Dunsmore,  487. 

V.  Hall,  469. 
Hurley  v.  Scbring,  426. 
Hurlock  V.  Smith,  420. 
Hurst  V.  Litchfield,  295. 
Hurt  V.  Ford,  70,  97. 
Huscombe  v.  Standing,  245. 
Hussey  v.  Horne-Payae,  28. 

V.  Jewett,  163. 

V.  Kirkman,  496. 
Husted  V.  Craig,  464. 
Hustis  V.  Pickards,  264. 
Hutchen  v.  Gibson,  286. 
Hutchins  v.  Hehbard,  58,  527. 
Hutchinson  v.  Bouers,  515. 

V.  Heyworth,  367. 

V.  Hutchinson,  78. 
Hutley  V.  Hutley,  292,  297-299. 
Hutton  V.  Warren,  396. 
Hutton  Bros.  v.  Gordon,  72. 
Hutzler  v.  Lord,  534. 
Huyett  &  Smith  Mfg.  Co.  v.  Chicago 

Edison  Co.,  473. 
Hyatt  V.  Clark,  505,  506. 
Hyde  v.  Wrench,  28,  29,  36,  37 
Hydeville  Co.  v.  Slate  Co.,  425. 
Hyer  v.  Hyatt,  160,  290. 

v.  Traction  Co.,  290. 
Hynds  v.  Hays,  322. 
Hypes  V.  Griffin,  85,  520. 
Hysell  V.  Mfg.  Co.,  473. 

! 

Ide  V.  Stanton,  85. 
Ihley  V.  Padgett,  166. 
Ilderton  v.  Ilderton,  344. 
Illinois  V.  Railroad  Co.,  440. 
Illinois   Cent.  R.   Co.   v.   Cabinet  Co., 
412. 
V.  Cobb,  487. 
Illinois  Land  &  Loan  Co.  v.  Bonner, 
163. 


Illinois  Land  &  Loan  Co.  v.  Speyer,  299. 

Illinois    Masons'    Benevolent    Soc.    v. 
Baldwin,  398. 

Ilsley  V.  Jewett,  141. 

Imperial   Land  Co.   of  Marseilles,   In 
re,  25. 

Imperial   Loan  Co.  v.  Stone,  37,  184. 

Indiana  Mfg.  Co.  v.  Hayes,  16. 

Indianapolis    Cabinet    Co.     v.     Herr- 
mann, 45. 

Indianapolis,   D.   &  S.   R.   Co.   v.   Er- 
vin,  289. 

IndianapoUs,  D.  &  W.  R.  Co.  v.  For- 
sythe,  319. 

Indianapolis,  P.  &  C.  R.  Co.  v.  Tyng, 
229. 

Indianapolis  W^ater  Co.  v.  Nulte,  375. 

Ingersoll  v.  Martin,  130,  491. 

Inglebright  v.  Hammond,  399. 

Ingraham  v.  Baldwin,  181,  183. 

Ingram  v.  Ingram,  356. 

Inhabitants  of  Bernards  Tp.  v.  Steb- 
bens,  52. 

Inhabitants  of  Garland  v.   Reynolds, 
516. 

Inhabitants    of    Industry    v.    Starks, 
297. 

Inhabitants  of  Middlefield  v.  Knitting 
Co.,  375. 

Inhabitants  of  Town  of  Montville  v. 
Haughton,  52. 

Inhabitants  of  Township  of  Borden- 
town  V.  Wallace,  245. 

Inhabitants  of  West  Cambridge  v.  In- 
habitants of  Lexington,  344. 

International  Bldg.  &  Loan  Ass'n  v. 
Abbott,  271. 

International   G.   N.    R.   Co.   v.  Daw- 
son, 288. 

Inter-Ocean   Pub.    Co.    v.    Associated 
Press,  315. 

lonides  v.  Insurance  Co.,  202. 
V.  Pender,  214. 

Iowa  Savings  &  Loan  Ass'n  v.  Heidt, 
271,  274. 

Iredell  v.  Barbee,  404. 

Ireland  v.  Geraghty,  54. 

Iron  City  Tool  Works  v.  Long,  534. 

Iron  Works  v.  Douglas,  36. 

Irvine  v.  Irvine,  153,  164,  169. 
V.  McKeon,  58. 
V.  Watson,  521,  523. 

Irvine's  Heirs  v.  Crockett,  163. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


601 


Irwin    V.    Lombard    University,    118, 

iiy. 

V.  University,  118. 

V.  Willlar,  276,  278-280,  342,  396. 

V.  Wilson,  203. 
Isham  V.  Post,  111. 
Isherwood  v.  Whitmore,  442. 
Isom  V.  Johns,  537. 
Iverson  v.  Oirkel.  97. 
Ives  V.  Bosley,  li.'6. 

V.  Carter,  227. 

V.  Hazard,  89. 

V.  Jones,  259,  327. 

V.  Tregent,  22. 
Ivory  V.  Michael,  481. 

J 

Jack  y.  Davis,  369. 
Jackson  v.  Badger,  505. 

V.  Bank,  331. 

V.  Burke,  438. 

V.  Cassidy,  271. 

V.  Collins,  227,  228. 

V.  Duchaire,  257. 

V.  Emmens,  514. 

V.  Gager,  389. 

V.  Gardner,  406. 

V.  Hodges,  236. 

V.  Hough,  537. 

V.  Insurance  Co.,  466. 

V.  Jackson,  344. 

V.  Johnson,  483. 

V.  McLean,  337. 

V.  May,  274. 

V.  Murray,  534. 

V.  Myers,  95. 

V.  Parkhurst,  57. 

V.  Sheldon,  389. 

V.  Stackhouse,  403,  491. 

V.  Travis,  271. 

y.  Tupper,  104. 

V.  Vanderheyden,  188. 
Jackson  Ins.  Co.  v.  Partee,  528. 
Jackson  Iron  Co.  v.  Concentrating  Co., 

80. 
Jackson  Steei  Nail  Co.  v.  Marks,  280. 
Jacksonville  M.  P.  Ry.  &  Nav.  Co.  v. 

Hooper,  53,  472. 
Jacobs,  In  re  260. 

V.  Moseley,  74. 

V.  Railroad  Co.,  94. 

V.  Tobiason,  291. 


Jacquinet  v.  Boutron,  474. 

Jaeger's  Sanitary  Woolen  Supply  Co 

V.  Walker,  364. 
Jaffray  v.  Davis,  129,  13L 
Jaffrey  v.  Brown,  222. 
James  v.  Adams,  444,  447. 

V.  Allen  Co.,  526. 

V.  Darby,  28. 

V.  Jellison,  303,  323. 

V.  M'Credie,  515. 

V.  Mayrant,  191. 

V.  Morey,  65. 

V.  Morgan,  134. 

V.  Newton,  366. 

V.  Patten,  89. 

T.  Roberts,  241. 

V.  Steere,  217. 
James'  Estate,  In  re,  110. 
Jameson  v.  Carpenter,  337. 
Jamieson  v.  Wallace,  278,  342. 
Jamison  v.  Culligan,  184. 

V.  Dimock,  94. 
Janin  v.  Brown,  477. 
Janis  V.  Roentgen,  293. 
Janney  v.  Boyd,  398. 
Jansen  v.  Williams,  508,  510. 
Janvrin  v.  Exeter,  38. 
Jaqua  v.  Headington,  413. 
Jaques  v.  Methodist  Church,  190. 
Jaquith  v.  Hudson,  413. 
Jarvis  v.  Peck,  312. 
Jeane  v.  Grand  Lodge,  296. 
Jefferson  v.  Asch,  357. 

V.  Church   of   St.    Matthew,   437, 
438. 
Jefferson  Co.  Bldg.  Ass'n  v.  Heil,  54. 
Jeffery  v.  Undenvood,  52. 

V.  W^alker,  95. 
Jefferys  v.  Gurr,  92. 
Jefford  v.  Ringgold,  163. 
Jeffrey  v.  Bigelow,  224,  514,  523. 
Jeffries  v.  Fei-guson,  385. 
Jefts  V.  York,  517. 
Jell  V.  Douglas,  382. 
Jellett  V.  Rhode,  81. 
Jenkins  v.  Atkins,  528. 

V.  Bradford,  298. 

V.  Frink,  259. 

V.  Hall,  303. 

v.  Hutchinson,  517. 

V.  Long,  429. 

V.  Pye,  248,  251,  253. 

V.  Trager,  74. 


602 


Jenks  V.  Fritz,  208. 
Jenners  v.  Howard,  180. 
Jenness  v.  Irou  Co.,  36. 

V.  Lane,  126,  131. 

V.  Parker,  470. 
Jennings  v.  Chase,  126. 

V.  Lyons,  476,  550. 

V.  McConnel,  248,  249. 

V.  Randall,  176,  177. 
Jerome  v.  Bigelow,  257. 
Jervis  v.  Berridge,  3^3. 
Jessel  V.  Insurance  Co.,  363. 
Jett  V.  Hempstead,  508. 
Jewett  V.  Black,  409. 

V.  Smith,  378. 
Jewett  Pub.  Co.  v.  Butler,  259. 
J.  G.  Wagner  Co.  v.  Cawker,  412. 
J.    I.   Case    Threshing   Mach.    Co.    v. 

Smith,  89. 
Jilson  V.  Gilbert,  77. 
Joannin  v.  Ogilvie,  540. 
Joest  V.  Williams,  187. 
Jolm  V.  John,  114. 
John  PritzlafE  Hardware  Co.  v.  Berg- 

hoefer,  460. 
Johns  V.  Fritchey,  186. 

V.  Wilson,  354. 
Johnson  v.  Chadwell,  179. 

V.  Cummins,  190,  191. 

V.  Cunningham,  511. 

V.  Dodgson,  83. 

V.  Fall,  276. 

V.  Farley,  53. 

V.  Gallagher,  190. 

V.  Harvey,  534. 

V.  Heagan,  480. 

V.  Hubbell,  218. 

V.  Hulings,  264. 

V.  Hurley,  502. 

T.  Insurance  Co 

V.  Jacobs,  23. 

V.  Lines,  156,  157,  159. 

V.  McLane,  236. 

V.  Moore,  479. 

V.  Packet  Co.,  533,  534, 

V.  People,  267. 

V.  Pie,  177. 

V.  Seymour,  225,  234. 

V.  Smock,  441. 

V.  Stoddard,  398. 

V.  Stone,  501. 

V.  Storie,  166. 

V.  Travis,  488. 

V.  Wallower,  224. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Johnson  v.  Wilkinson,  76. 

V.  Youngs,  526. 
Johnson's  Adm'r  v.  Hunt,  303,  492. 

V.  Railroad  Co.,  20,  34,  319. 

V.  Seller's  Adm'r,  129. 
Johnson's    Ex'x   v.   Jennings'    Adm'r, 

542,  545. 
Johnston  v.  Bowersock,  78. 

V.  Dahlgren,  264. 

V.  Dickson,  335. 

V.  Insurance  Co.,  369. 

V.  Jones,  91. 

V.  McConnell,  264. 

V.  Miller,  278. 

V.  OUver,  58. 

V.  Patterson,  199. 

V.  Russell,  276. 

V.  Trask,  99,  426. 

V.  Trippe,  120. 

v.  Wadsworth,  87,  489. 
Johnstone  v.  Mappin,  73. 

V.  Milling,  446. 
Johnston   Harvester   Co.    v.    McLean, 

480,  483. 
John  V.  Farwell  Co.  v.  Hilton,  238. 
Joice  V.  Taylor,  218. 
Jonassohn  v.  Young,  454. 
Jones  V.  Anderson,  397. 

V.  Bacon,  70. 

V.  Bank,  154,  331. 

V.  Benedict,  438. 

V.  Blocker,  350. 

V.  Brewer,  152. 

V.  Brown,  295. 

V.  Christian,  238. 

V.  Colvin,  157. 

V.  Daniel,  28. 

V.  Daunenberg  Co.,  294. 

V.  Davis,  89. 

V.  Degge,  116. 

V.  Dow,  84, 

V.  Edney,  216. 

V.  Flint,  76. 

V.  George,  463. 

V.  Grantham,  42G. 

V.  Hake,  272. 

V.  Harris,  526. 

V.  Hart,  516. 

V.  Hoar,  549. 

V.  Johnson,  478. 

Y.  Judd,  474,  550. 

V.  Just,  4G3. 

V.  Llo,yd,  248,  249. 

V.  Perkins,  131,  191,  266,  492,  704. 


172,  174. 


Jones  V.  Pouch,  77. 

V.  Randall,  345. 

V.  Reynolds,  101. 

V.  Risley,  128. 

V.  Rittenhouse,  122. 

V.  Ryde,  4(>9,  545. 

V.  Shale,  279. 

V.  Stanly,  350. 

V.  Thomas,  356. 

V.  Turner,  244,  245. 

V.  Tye,  86. 

V.  U.   S.,   217,   410,   439,   462,   472, 
473. 

V.  Williams,  50,  437. 

V.  Wilson,  130. 
Jones  Adm'r  v.  Perkins,  180. 
Jones  &  Hotchkiss  Co.  v.  Davenport, 

431. 
Jordan  v.  Coffield,  156. 

V.  Davis,  54. 

V.  Dayton,  264. 

V.  Miller,  78. 

V.  Norton,  28. 

V.  Osgood,  222. 

V.  Parker,  239. 

V.  Thornton,  371. 
Josling  V.  Kingsford,  463. 
Joslyn  V.  Parlin,  364. 
Joy  V.  St.  Louis,  403,  405. 
Judd  V.  Harrington,  313. 

V.  Weber,  232. 
Judkins  v.  Walker,  175. 
Judson  V.  Corcoran,  370. 
Judy  V.  Louderman,  114. 
Juilliard  v.  Chaffee,  392. 
Jump  V.  Johnson,  346. 
Junkans  v.  Bergin,  50. 
Justice  V.  Lang,  89,  105. 
Juzan  V.  Toulmin,  221. 

K 

Kadish  V.  Young,  444,  446. 

Kafes  V.  McPherson,  367. 

Kagel  V.  Totten,  198. 

Kahn  v.  Walton,  280,  342. 

Kalmbach  v.  Poote,  537. 

Kamena  v.  Huelbig,  369,  370. 

Kane  v.  Hood,  452. 

Kansas  City,  M.  &  B.  R.  v.  Robertson, 

366. 
Kant  V.  Rice,  295. 
Kantrowitz  v.  Prather,  190. 
Katz  y.  Bedford,  431. 


CASES   CITED.  608 

[The  figures  refer  to  pages.] 

Katz  V.  Moessinger,  141. 
Kauffman  v.  Raeder,  450. 
Kaufman  v.  Bank,  356. 

v.  Mfg.  Co.,  45. 
Kayton  v.  Barnett,  519. 
Keadle  v.  Siddeus,  69. 
Kean  v.  Davis,  520. 
Keane  v.  Boycott,  150,  162. 
Kearley  v.  Thomson,  338. 
Kearney  v.  Taylor,  259. 
Kearon  v.  Pearson,  472. 
Keasley  v.  Thomson,  339. 
Keates  v.  Lord  Cadogan,  221. 
Keating  v.  Price,  216,  218. 
Keeble  v.  Cummins,  179. 

V.  Keeble,  412. 
Keedy  v.  Long,  430. 

V.  Moats,  55. 
Keefer  v.  Zimmerman,  478. 
Keeler  v.  Clifford,  433. 

V.  Herr,  431. 

V.  Taylor,  307. 
Keen  v.  Beckman,  59,  394. 
Keene  v.  Sage,  355. 

V.  Weeks,  483. 
Keener  v.  Crull,  141. 
Keenholts  v.  Church,  542. 
Keep  V.  Goodrich,  118,  119. 
Keesling  v.  Frazier,  70. 
Keffer  v.  Grayson,  60,  126. 
Kehoe  v.  Patton,  357. 
Keidan  v.  Winegar,  520. 
Keighler  v.  Mfg.  Co.,  510. 
Keighley  v.  Watson,  415. 
Keightley  v.  Watson,  383. 
Kein  v.  Tupper,  16. 
Keir  v.  Leeman,  293. 
Keiser  v.  Decker,  273. 
Keith  V.  Goodwin,  481. 

v.  Miles,  128. 

V.  Optical  Co.,  307. 
Keller  v.  Ashford,  354,  358. 

v.  Holderman,  41. 

V.  Orr,  229. 

y.  Ybarru,  42,  45. 
Kelley  v.  Caplice,  252. 

V.  Davis,  159,  548. 

V.  Insurance  Co.,  134. 

V.  Railroad  Co.,  505,  508. 
Kellogg  V.  Krauser,  368. 

V.  Olmstead,  126. 

V.  Richards,  131. 

V.  Robinson,  375. 
Kellogg  Bridge  Co.  v.  Hamilton,  463. 


604 


Kelly,  In  re,  39. 

V.  Bliss,  419. 

V.  Bradford,  432. 

T.  Roberts,  357. 

V.  Solari,  208,  543. 
Kelner  v.  Baxter,  504. 
Kelsea  v.  Mfg.  Co.,  23. 
Kelsey  v.  Hobby,  242. 
Kemble  v.  Farren,  412,  414. 
Kemmitt  v.  Adamson,  274. 
Kemp  V.  Fender,  534. 

V.  Hurophrey,  409. 

V.  Pryor,  499. 

V.  Walker,  54. 
Kempuer  v.  Cohn,  26,  31,  34. 
Kemp's  Ex'r  v.  McPherson,  369. 
Kendall  v.  Hamilton,  380. 

V.  May,  181. 

V.  West,  428. 

V.  Wilson,  228. 
Kendrick  v.  Niesz,  141,  151,  167-169. 
Kennebec  Co.  v.  Augusta  Ins.   &  B. 

Co.,  893. 
Kennedy  v.  Baker,  109. 

V.  Brown,  139. 

V.  Ehlen,  90,  500. 

V.  Insurance  Co.,  537. 

V.  Owen,  376. 

V.  Panama,  etc.,  Co.,  218. 

V.  Poor,  460. 

V.  Roberts,  241. 
Kennemore  v.  Kennemore,  95. 
Kenner  v.  Harding,  222. 
Kennerty  v.  Etiwan  Co.,  197. 
Kensington,  The,  345. 
Kent  V.  Bornstein,  516. 

V.  Carcaud,  218. 

V.  Kent,  77,  78. 

V.  Rand,  141. 
Kentucky  v.  Bassford,  344. 
Kenyon  v.  Ass'n,  435. 
Kepner  y.  Keefer,  266. 
Keppell  V.  Bailey,  376. 
Kerfoot  v.  Hyman,  510. 
Kerkhof  v.  Paper  Co.,  104. 
Kerns  v.  Hagenbuchle,  304. 
Kerr  v.  Brunton,  297. 

V.  Hill,  76. 
Kershaw  v.  Kelsey,  147. 
Kerwin  v.  Doran,  343. 
Kessler  v.  Smith,  105. 
Kessler's  Estate,  In  re,  74. 
Ketchum  v.  Catlin,  201. 

r.  Evertson,  552. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Kettle  R.  R 


Co.  V.  Railway  Co.,  373, 

377,  540. 
Keuka  College  v.  Ray,  118,  119. 
Keyes  v.  Allen,  69. 
Kidder  v.  Blake,  323. 

V.  Kidder,  419,  491. 

V.  NoiTis,  437. 
Kidney  v.  Persons,  538. 

V.  Stoddard,  222. 
Kiersted  v.  Railroad  Co.,  521. 
Kiewert  v.  Rindskopf,  538,  539. 
Kihlberg  v.  U.  S.,  460. 
Kilcrease  v.  Johnson,  345. 
Kilgore  v.  Rich,  156,  158. 
Kilkelly  v.  Martin,  479,  481. 
Killmore  v.  Hewlett,  76. 
Kilmer  v.  Smith,  208. 
Kimball,  The,  43G. 

V.  Bangs,  227. 

V.  Cuddy,  179. 

V.  Morton,  489. 

V.  Noyes,  358. 
Kimball  &  Austin  Mfg.  Co.  v.  Vroman. 

428. 
Kimbrough  v.  Lukins,  273. 
Kirae  v.  Brooks,  500. 
Kimmell  v.  Skelly,  229. 
Kincaid  v.  School  Dist,  441. 
Kindig  v.  March,  527. 
Kine  v.  Turner,  290. 
King  V.  Bushnell,  96. 

V.  Oummings,  179. 

V.  Doolittle,  200. 

V.  Duluth,  460. 

V.  Faist,  420. 

V.  Finch,  441. 

V.  Fleming,  269. 

V.  Gillett,  419. 

V.  Hoare,  3S0,  415. 

V.  Holbrook,  401. 

V.  Kaiser,  74. 

V.  Kersey,  448. 

V.  King,  303,  323,  324. 

V.  Mackellar,  505. 

V.  Railway  Co.,  128. 

V.  Warfield,  21. 

V.  Welcome,  96,  553. 

V.  Wight,  375. 

V.  Wood,  86. 

V.  Woodbridge,  487. 

V.  Woodruff,  16. 
Kinghorne  v.  Telegraph  Co.,  42. 
King   Iron   Bridge  &  Mfg.  Co.  ▼. 
Louis,  409. 


St 


CASES  CITED. 
[The  figures  refer  to  pages.] 


!695 


Kingman  v.  Relnemer,  229. 
Kingmau  &  Co.  v.  Stoddard,  235. 
King  of  Prussia  v.  Kueppor,  146. 
King  Phillip  Mills  v.  Slater,  455. 
Kingsbury  v.  Burrill,  366. 

V.  Kirwan,  278. 

V.  Sargent,  244. 
Kingsley  v.  Davis,  522,  523. 

V.  White,  103. 
Kingston  Bank  v.  Eltinge,  543. 
Kinney  v.  Ass'n,  295. 

V.  McDermott,  269. 

V.  RaUroad  Co.,  16. 
Kinsley  v.  Norris,  503. 
Kintzing  v.  McElrath,  224. 
Kirby  v.  Harrison,  409. 
Kirk  V.  Hartman,  525. 
Kirkham  v.  Marter,  67. 
Kirkland  v.  Benjamin,  293. 

V.  Randon,  276. 
Kirkpatrick  v.  Adams,  342. 

V.  Gallagher,  18. 

V.  Puryear,  435. 

V.  Reeves,  230. 

V.  Stainer,  517. 

V.  Taylor,  108. 
Kirksey  v.  Kirksey,  40. 
Kitchen  v.  Lee,  172. 
Kitzinger  v.  Beck,  368. 
Klapp  V.  Kleckner,  384. 
Kleckley  v.  Leyden,  261. 
Klee  V.  Grant,  33. 
Kleeman  v.  Frisbie,  369. 
Kleinsorge  v.  Rohse,  401. 
Kline  v.  Bank,  520. 

V.  Beebe,  166. 

V.  L'Amoreux,  157,  159. 

V.  Ragland,  440. 
Knapp  V.  Alvord,  529. 

V.  Hoyt,  141. 

V.  Insurance  Co.,  358. 
Knappen  v.  Freeman,  230. 
Knevals  v.  Blauvelt,  366. 
Knight  V.  Abbott,  441. 

V.  Cooley,  41. 

V.  Lee,  343,  346. 

V.  McKinney,  495. 

V.  Mann,  101. 

V.  Sawin,  29T. 

V.  Worsted  Co.,  465. 
Knisely  v.  Shenberger,  404. 
Knott  V.  Tidyman,  250. 
Knowlton  v.  Keenan,  225. 

V.  Spring  Co.,  338. 


Knox  V.  Flack,  154. 

V.  Hang,  1S2. 

V.  Martin,  297. 
Knox  Rock  Blasting  Co.  v.  Stone  Co., 
413. 

V.  White,  335. 
Koch  V.  Roth,  437. 

v.  Williams,  96,  55S. 
Koehler  v.  Buhl,  428. 
Kohl  V.  Lindly,  222. 
Kohn  V.  Melcher,  328. 
Koontz  V.  Bank,  543, 
Kopp  V.  Reiter,  91. 
Korne  v.  Korne,  123. 
Kountz  V.  Price,  269,  270. 
Kowalke  v.  Light  Co.,  203. 
Kozel  V.  Dearlove,  90. 
Kraker  v.  Byram,  157. 
Kramer  v.  Old,  309. 
Kranich  v.  Sherwood,  390. 
Krause  v.  Busacker,  230, 
Krebs  v.  O'Grady,  190. 
Kreitz  v,  Behrensmeyer,  147. 
Kribben  v.  Haycraft,  286. 
Kriete  v.  Myer,  85. 
Kriger  v.  Leppel,  96,  553. 
Kroeger  v.  Pitcaim,  518,  524. 
Krohn  v.  Bantz,  89. 
Kromer  v.  Heim,  491. 
Kronschnabel-Smith  Co.  v.  Kronscbua- 

bel,  307. 
Kruschke  v.  Stefan,  241. 
Kuecken  v.  Voltz,  404, 
Kuhns  V.  Gates,  269. 
Kulen  Kemp  v.  Vigne,  277. 
Kullman  v.  Greenebaum,  257,  258, 
Kunkel  v.  Wherry,  412, 
Kyger  v.  Sipe,  162. 
Kyle  V.  Fehley,  401. 

V.  Kavanagh,  202,  203. 
Kyner  v.  Boll,  207. 


Laclede  Bank  v.  Schuler,  370. 
Lacy  V.  Getman,  378. 

V.  Green,  404. 

V.  Plxler,  106,  109,  173,  177. 
Ladd  V.  Dillingham,  324. 

V.  Hildebrant,  505. 

V,  King,  427. 

V.  Rogers,  269. 
La  Du-King  Mfg.  Co.  v.  La  Du,  91. 


606 


CASES   CITED. 
[The  figures  refer  to  page*.] 


Lafferty  v.  Jelley,  208. 

Laflin  v.  Howe,  54G. 

Laflin    &   Rand   Powder   Co.    v.    Sin- 

sheimer,  520. 
Lagerfelt  v.  McKie,  65. 
Lagoada  Nat.  Bank  v.  Portner,  335. 
Laidlaw  v.  Organ,  205,  221,  223,  224. 
Lakeman  v.  Pollard,  476,  477,  550. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Spang- 

ler,  319. 
Lakeside  Land  Co.  v.  Dromgoole,  40. 
Lamare  v.  Dixon,  218. 
Lamb  v.  Crafts,  98,  100. 

V.  Henderson,  398. 

V.  Lathrop,  440. 
Lambert  v.  Heath,  4G9,  546. 
Lamberton  v.  Dunham,  230. 
Lamine  v.  Dorrell,  537. 
Lamkin  v.  Mfg.  Co.,  83. 
L'Amoreux  v.  Gould,  119,  129. 
Lampleigh  v.  Braithwait,  138,  139. 
Lampman  v.  Cochran,  414. 
Lamprey  v.  Lamprey,  130. 
Lancaster  v.  Elliott,  23. 
Lancaster  Nat.  Bank  v.  Taylor,  372. 
Lancy  v.  Havender,  298. 
Landa  v.  Obert,  241. 

V.  Shook,  476. 
Landers  v.  Bolton,  389. 
Landon  v.  Hutton,  419. 
Lane  v.  Corr,  518. 

V.  Insurance  Co.,  274. 

V.  Iron  Co.,  173. 

V.  Ironmonger,  501. 

V.  Shackford,  80,  92. 

V.  Smith,  369. 
Langan  v.  Iverson,  80. 
Langdon  v.  Clayson,  169. 

V.  Conlin,  292. 

V.  Mayor,  etc.,  406. 

V.  Richardson,  68. 
Langellier  v.  Schaefer,  30. 
liangenberger  v.  Kroeger,  482. 
Langevin  v.  St.  Paul,  544. 
Langi-idge  v.  Levy,  231. 
Langton  v.  Hughes,  330. 
Lankton  v.  Stewart,  130. 
Lansden  y.  McCarthy,  360. 
Lansing  v.  Dodd,  412. 

V.  Railroad  Co.,  165. 
Lanzit  v.  Mfg.  Co.,  308. 
Lapham  v.  Osborne,  552. 
Lapp  V.  Smith,  492. 
V.arkin  v.  Hardeubrook,  419. 


Larkin  v.  Lumber  Co.,  16. 
Larmon  v.  Jordan,  31,  33,  35. 
Larned  v.  Andrews,  261. 
Laroe  v.  Dairy  Co.,  492. 
Larsen  v.  Breene,  441. 

V.  Johnson,  73. 
La  Rue  v.  Gilkyson,  181. 

V.  Groezinger,  364. 
Lash  V.  Parlin,  303. 
Latchford,  Succession  of,  271. 
Latham  v.  Hartford,  442. 

V.  Udell,  247. 
Lathrop  v.  Bank,  505. 

V.  Knapp,  118. 

V.  President,  etc.,  296. 
Lattimore  v.  Harsen,  128. 

V.  Simmons,  378. 
Lauer  v.  Lee,  418. 

V.  Mercantile  Inst,  83. 
Lavassar  v.  Washburne,  501^ 
Laverty  v.  Snethen,  509. 
Law  V.  Law,  283. 

V.  Long,  170. 

V.  Stokes,  513,  514. 
Lawing  v.  Rintles,  473. 
Lawrence  v.  Bank,  543. 

V.  Cooke,  81. 

V.  Davey,  128. 

V.  Dole,  425. 

V.  Fox,  356. 

V.  Gayetty,  225. 

V.  Kidder,   115. 

V.  McCalmont,  113,  407. 

V.  IMiller,  425,  462. 

V.  Oglesby,  108. 

V.  Railway  Co.,  22,  29. 

V.  Willis,  179. 
Lawrence's  Lessee  v.  McArter,  154. 
Lawson  v.  Hogan,  421. 

V.  Lawson,  537. 

V.  Lovejoy,  168. 
Lawson's  Ex'rs  v.  Lawson,  530. 
Lawton  v.  Blitch,  278. 
Layman  v.  Conroy,  247. 
Leach  v.  Nichols,  198. 

V.  Tilton,  471. 
Leacox  v.  Griffith,  166. 
Leake  v.  Ball,  69. 
Leatherberry  v.  Odell,  430. 
Leather  Cloth  Co.  v.  Hieronimus,  427. 
Leavitt  V.  Investment  Co.,  407. 

V.  Palmer.  322. 

V.  Sizer,  230. 

V.  Stern,  424. 


CASES   CITED. 


607 


Lebby  v.  Ahrens,  233. 
Lecomte  v.  Toudouze,  74. 
Ledbetter  v.  Davis,  228. 

V.  McGhees,  (>9. 

V.  Walker,  500. 
Lee  V.  Adkins,  52,  53. 

V.  Burnham,  235,  237. 

V.  Butler,  88. 

y.  Cberry,  45,  83,  88. 

V.  Early,  437. 

V.  Gaskell,  75. 

V.  Griffin,  37,  99. 

V.  Hawks,  426. 

V.  Merritt,  537. 

V.  Muggeridge,   108,  137,  141. 

V.  Murdock,  4S0. 

V.  Starbird,  481. 

V.  Yandell,  185. 
Leeds  V.  Gifford,  439. 

y.  Little,  431. 
Lee's  Adm'r  v.  Hill,  79,  81. 
Leeson  v.  Anderson,  130. 
Leete  v.  Mining  Co.,  406. 
Le  Fevre  v.  Le  Fevre,  425. 
Lefferts  v.  Weld,  410. 
Legge  V.  Harlock,  412. 
Le  Grand  v.  Bank.  222,  238. 
Le  Grange's  Lessee  v.  Ward,  50. 
Legro  V.  Staples,  362. 
Lehigh  Coal  &  Nav.  Co.  v.  Brown,  540. 

V.  Mohr,  528. 
Lehigh  Valley  Coal  Co.  v.  Curtis,  31. 
Lehigh  Valley  R.  Co.  v.  Woodring,  365. 
Lehman  v.  Feld,  342,  343.  517. 
Lehmann  v.  Schmidt,  549. 
Leighton  v.  On-,  250. 
Leman  v.  Randall,  96. 
Lemans  v.  Wiley,  544. 
Lemmon  v.  Beeman,  150,  172,  173. 
Lenhart  v.  State,  150. 
Lennon  v.  Napper,  409. 
Lennox  v.  Murphy,  23.  24. 
Lente  v.  Clarke,  86. 
Lenz  V.  Brown,  45. 
Leonard  v.  Barker,  494. 

V.  Davis,  103. 

V.  Dyer,  457. 

V.  Hughlett,  58. 

Y.  Leonard,  182. 

V.  Medford,  76. 

V.  Patton,  273 

V.  Phillips,  480. 

V.  Poole,  313. 
Leopold  V.  Salkey,  475. 


[The  figures  refer  to  pages.] 

Leppla  V.  Mackey,  373. 
Leppoe  V.  Bank,  55. 
Lerch  v.  Gallop,  70. 
Lerned  v.  Johns,  84. 

V.  Wanemacher,  82. 
Leroux  v.  Brown,  91,  97. 
Leskie  v.  Haselstine,  42., 
Leslie  V.  Casey,  461. 

V.  Lorillard,  289. 
Lester  v.  Bank,  260. 

v.  Buel,  278. 

V.  Heidt,  85. 
Lesure  Lumber  Co.  v 

295. 
Leverenz  v.  Haines,  121. 
Leverick  v.  Meigs,  515. 
Levering  v.  Heighe,  163. 
Levey  v.  Allien,  274,  275. 

T,  Railroad  Co.,  45. 
Levi  V.  Marsha,  190. 
Levy  V.  Cohen,  25. 

V.  Ford,  423. 

v.  Spencer,  302. 
Lewis  v.  Alexander.  331. 

V.  Arbuckle,  180. 

V.  Bannister,  245. 


Insurance  Co., 


V.  Brass,  43. 

V.  Brehme,  516. 

V.  Bright,  263. 

V.  Broun,  298. 

V.  Browning,  27. 

V.  Bruton,  339. 

V.  Insurance  Co..  214,  488,  526. 

V.  Kerr,  528. 

V.  Kramer,  480. 

V.  Lee,  189. 

V.  Littlefield,  276. 

V.  Nicholson,  517. 

V.  Payn,  482. 

V.  Prather,  91. 

V.  Railroad  Co..  460. 

V.  Rountree,  463,  467. 

v.  Sawyer,  355. 

V.  Tapman,  72,  447. 

v.  Tappan,  81. 

V.  Welch,  261,  265. 

V.  Wllloughby,  390. 

V.  Wood,  84. 
Lewis'  Ex'rs  v.  Overby's  Adm'rs,  53. 
Lexington   Fire,    Life   &   Ins.    Co.    T. 
Paver,  214. 
i  Libby  v.  Robinson,  587. 
j  Lieberman  v.  Brothers,  380. 
1  Liening  v.  Gould,  130. 


608 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Lightbody  v.  Insurance  Co.,  514. 
Lightfoot  V.  Tenant,  330. 
Lighthall  v.  Moore,  243. 
Lillie  V.  Doinbar,  76. 

V.  Hoyt,  508. 
Lilly  V.  Tobbein,  850. 

v.  Waggoner,  180. 
Lillywhite  v.  Devereux,  103. 
Lincoln  v.  Buckmaster,  183,  184. 

V.  Granite  Co.,  412. 

V.  Preserving  Co.,  41. 
Lindell  v.  Rokes,  114. 
Lindley  v.  Groff,  403. 

V.  Hofman,  198. 

V.  Lacy,  394. 
Lindsay  v.  Mattliews,  442, 

V.  Smith,  324. 
Undsay  Pet.  Co.  v.  Hurd,  225. 
Lindsey's  Appeal,  18. 
Lindsley  v.  Railroad  Co.,  429. 
Liness  v.  Hesing,  291. 
Lining  v.  Geddes,  489. 
Liniuger  &  Metcalf  Co.  v.  Wheat,  24. 
Linington  v.  Strong,  228,  494. 
Link  V.  Clemmens,  266. 
Linn  v.  Sigsbee,  115,  307,  311. 
Linneman  v.  Moross'  Estate,  353,  355, 

422. 
Linton  v.  Insurance  Co.,  272. 
Lipp  V.  Hunt,  94. 
Lipscomb  v.  Lipscomb,  392. 
Lipsmeier  v.  Vehslage,  122. 
Liska  V.  Lodge,  197. 
Lisle  V.  Rogers,  480. 
Lister  v.  Allen,  514. 
Litchfield  v.  Garrett,  422. 

V.  Hutchison,  230. 
Llthgoe  V.  Vernon,  539. 
Litt  V.  Maitindale,  539. 
Little  V.  Bank,  362. 

V.  Blunt,  141. 

V.  Dougherty,  83. 

V.  Edwards,  71. 

V.  Little,  197. 

V.  Martin,  552. 
,  V.  Mills,  335. 
Littlefleld  v.  Bank,  309. 
Little  Rock  &  Ft.   S.  R.  Co.  v.  Cra- 
vens, 244. 
Litton  V.  Baldwin,  190. 
Ljtz  V.  Goosling,  33. 
Liverpool  Adelphi  Loan  Ass'n  v.  Fair- 
hurst,  189. 


Liverpool  &  G.  W.  Steam  Co.  v.  In- 
surance Co.,  346. 
Liversidge  v.  Broadbent,  363,  422. 
Livingston  v.  Insurance  Co.,  219. 

V.  Iron  Co.,  215. 

V.  Page,  291. 

v.  Railli,  295. 
Lla nelly  Ry.  &  Dock  Co.  v.  Railroad 

Co.,  495. 
Lloyd  V.  Fulton,  72. 

V.  Jewell,  470. 

V.  Keach,  271. 

Y.  Scott,  272,  274. 
Lobdell  V.  Baker,  514. 
Lobenstein  v.  U.  S.,  120; 
Locke  V.  Smith,  160. 

V.  Stearns,  524. 
Lockhart  v.  Hullinger,  291. 
Lockwood  V.  Coley,  520. 

V.  Fitts,  225,  227,  236. 

V.  Bobbins,  16. 
Lodge  V.  Dicas,  380. 

V.  Hulings,  122. 
Loeb  V.  Drakeford,  511. 
Loeffel  V.  Pohlman,  239. 
Loewer  v.  Harris,  232. 
Logan  V.  Gardner,  153. 

V.  Plummer,  59. 

V.  Trayser,  385,  534. 

V.  Wallis,  549. 
Logan    County    Nat.   Bank   v.   Town- 
send,  194,  505. 
Lombard  v.  Cobb,  416. 
Lomerson  v.  Johnston,  223,  245. 
London  Assm*ance  v.  Mansel,  215. 
London  &  N.  Bank,  In  re,  27. 
London  &  N.  W.  R.  Co.  v.  Price,  193. 
London  &  S.  F.  Bank  v.  Parrott,  407. 
Lonergan  v.  Buford,  243. 
Long  V.  Caft'rey,  450. 

V.  Davidson,  397. 

V.  Fox,  186. 

V.  Hartwell,  427. 

v.  Miller,  88. 

V.  Mulford,  250. 

v.  State,  280. 

V.  Towl,  124,  308. 

V.  Warren,  228. 
Long-Bell  Lumber  Co.  v.  Stump,  407. 
Long  Champs  v.  Kenny,  535. 
Longley  v.  Griggs.  385,  534. 
Longridge  v.  Dorville,  122. 
Lougworth  V.  Mitchell,  30. 


CASES   CITED. 


G09 


Phos- 


Lonsdale  v.  Brown,  138,  140. 
Loomis  V.  Insurance  Co.,  277,  278. 

V.  Newhall,  322. 

V.  O'Neal,  538. 

V.  Simpson,  511, 
Lord  V.  Goddard,  230. 

V.  Thomas,  446. 

V.  Wheeler,  473,  475. 
Lord  Bolton  v.  Tomlin,  65. 
Lorenzen  v.  Investment  Co.,  233. 
Lorillard  v.  Clyde,  356,  405. 
Loring  v.  Boston,  31,  36,  38,  30. 

V.  Cooke,  442. 
Loser  v.  Board,  285. 
Loud  V.  Water  Co.,  451,  453. 
Loudenback   Fertilizer    Co.    v. 

phate  Co.,  120. 
London  Sav.  Fund  Soe.  v.  Bank,  513, 

514. 
Loughborough  v.  McNevin,  442. 
Louisville  Asphalt  Varnish  Co.  v.  Lor- 

ick,  83. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Good- 
bar,  364. 

V.  Sumner,  288. 
Louisville,  St.  L.  &  T.  R.  Co.  v.  Nea- 

fus,  391. 
Louisville  &  N.  R.  Oo.  v.  Cooper,  229. 

V.  Dies,  319. 

V.  Grant,  319. 

V.  Orr,  319. 

V.  Philyaw,  92. 
Love  v.  Buckner,  282. 

V.  Harvey,  276. 

V.  Moynehan,  188. 

V.  State,  242. 

V.  Welch,  80. 

V.  Wells,  268, 
Lovejoy  v.  Hovre,  357. 

V.  Isbell,  228. 

V.  Whipple.  269. 
Lovell  V,  Insurance  Co.,  449. 

V.  Wall,  206. 
Lovelock  V.  Franklyn,  448. 
Lovering  v.  Lovering,  448. 
Low  V.  Andrews,  97, 

V.  Forbes,  426, 

V.  Hutchinson,  297. 

V.  Low,  94. 
Lowber  v.  Bangs,  210,  451,  464, 
Lowe  v.  Bryant,  110. 

V,  Hamilton,  70. 

V,  Harris,  86. 

V,  Peers,  303. 

Clakk  Cont.(2d  Ed.)— 39 


[The  figures  refer  to  pages.] 

Lowe  v.  Sinklear,  175. 
Lower  v.  Schumacher,  183. 
Lowndes  v.  Chisholm,  207,  226, 
Lowrey  v.  Drake's  Heirs,  171. 
Lowry  v.  Mehatfy,  452, 

V.  Thompson,  145. 
Lozear  v.  Shields,  180. 
Lubbock  V.  Tribe,  535. 
Lubert  v,  Chauviteau,  538. 
Lucas  V,  Allen,  127. 

V,  Bank,  490. 

V.  Coulter,  221. 

V,  Dixon,  82. 

V.  Harper,  276, 

V,  Tiu-npike  Co,,  375. 

V.  Waul,  335. 
Lucke  V.  Clothing  Cutters,  350. 
I^uckens  v.  Hazlett,  275. 
Luddington  v.  Bell,  423. 
Ludlow  V.  Hardy,  138,  142. 

V.  Simond,  53. 

V.  Van  Rensselaer,  345. 
Lufkin  V.  Mayall,  175. 
Lufkin.  Rule  Co.  v.  Fringeli,  308. 
Lukens  v.  Hazlett,  271. 
Lum  V.  McEwen,  302. 
Lumley  v.  Wagner,  490. 
Lumsden's  Case,  161. 
Lundberg  v.  Elevator  Co.,  122, 
Lungstrass  v.  Insurance  Co.,  34. 
Lunt  V.  Stevens,  381. 
Lupton  V.  Freeman,  436. 
Luiton  V.  Gilliam,  383. 
Lusk  V.  Throop,  68. 
Lutz  V.  Linthicum,  517, 

V.  Thompson.  451,  461. 
Luzader  v.  Richmond,  93. 
Lyford  v.  Railroad  Co.,  373,  375. 
Lyman  v.  Babcock,  414. 

V,  Railroad  Co.,  288. 

V,  Robinson,  42. 
Lynch  v.  Doran,  179. 

y.  Mui'phy,  225. 

v.  Rosenthal,  280. 
Lynn  v.  Bruce,  133,  491. 
Lyon  V.  Bertram,  469. 

V,  Jerome,  511. 
Kent,  497. 


V, 
V. 
V. 
V. 
V. 
V. 
V, 


King,  79, 
Lenon,  393. 
Mitchell,  287. 
Respass,  331. 
Strong,  266. 
W^aldo,  333. 


610 

Lyons  v.  Hodgen,  279. 
Lytbgoe  v.  Vernon,  539. 

M 


McAdams'  Ex'rs  v.  Stilwell,  389. 
McAleer  v.  Horsey,  226. 
McAllister  v.  Hoffman,  291,  339. 

V.  Reab,  471. 
McAndrew  v.  Chappie,  466. 
McAnnulty  v.  McAnnulty,  72,  83. 
McAithur  V.  Board,  415. 

V.  Luce,  543. 

V.  Printing  Co.,  504. 

V.  Sears,  429. 
McAvoy  V.  Long,  403. 
McBlair  v.  Gibbes,  337. 
McBratney  v.  Chandler,  285. 
McBrayer  r.  Cohen,  90. 
McBride  v.  Publishing  Co.,  229. 
McCabe  v.  Caner,  122. 

V.  Gray,  369. 
McCall  V.  Nave,  132. 

V.  Parker,  151. 

V.  Price,  380. 
McCalla  v.  Mortgage  Co.,  506. 
McCall  Co.  V.  Icks,  45,  120. 
McCall's  Adm'r  v.  Capehart,  257,  297 
McCaudless  v.  Steel  Co.,  127,  2&4. 
McOann  v.  Eddy,  320. 
McCants  v.  Bee,  249,  251. 

V.  Wells,  511. 
McCarthy  v.  Ass'n,  128. 

V.  Nash,  102. 
McCartney  v.  Shepard,  327. 
McCarty  v.  Iron  Co.,  170,  173,  17a 
McCaughey  v.  Smith,  481. 
McCaul  V.  Braham,  490. 
McCausland  v.  Ralston,  437. 
McClam  v.  Davis,  184,  186. 
McClair  v.  Wilson,  240,  244. 
McClanahan  v.  Williams,  170. 
McClatchie  v.  Haslam,  245. 
McClay  v.  Hedge,  462. 
McClellan  v.  Filson,  191. 

V.  Kennedy,  122. 

V.  Reynolds,  520. 

V.  Robe,  422. 
Clelland  v.  Bank,  258. 

V.  Rush,  426. 
Clun  V.  McClun,  181. 
Clung's  Appeal,  115. 
r;iure  V.  Briggs.  4.32,  507. 

.V.  Jefferson,  467. 


CASES   CITED. 
£The  figures  refer  to  pages.] 

McClure  v.  Lewis.  250. 

V.  McClure,  122. 

V.  Otrich,  96. 

V.  Railroad  Co.,  20. 
McClurg  V.  Terry,  41. 
McClurg's  Appeal,  307,  311. 
McCollum  V.  Edmonds,  114. 
McComb  V.  Ass'n,  272. 

V.  Wright,  515. 
McCombs  V.  McKennan,  42L 
McConahey  v.  Griffey,  78. 
McConihe  v.  McMann,  330. 
McConkey  v.  Barnes,  154. 

V.  Oockey,  217. 
McCounell  v.  Brillhart,  84,  85. 

V.  Kitchens,  261,  264. 
McConnico  v.  Curzen,  515. 
McCormick  v.  Basal,  444,  447, 

V.  Dalton,  244. 

V.  Holbrook,  191. 

T.  Leggett,  164. 

V.  Littler,  180,  181,  183. 

V.  McCormick,  18. 

V.  Malin,  250. 
McCormick   Harvester   Co.    v.   Miller, 

242. 
McCormick   Harvesting  Mach.  Co.  v. 
Chesrown,  433. 

V.  Richardson,  21. 

v.  Wilson,  393. 
McCotter  v.  New  York,  34. 
McCoy's   Adm'rs   v.    Bixbee's   Adm'r, 

451. 
McCracken  v.  Harned,  31. 

V.  San  Francisco,  503,  504. 
McCrary  v.  McFarland,  399. 
McOrea  v.  Purmort,  58,  390,  537. 
McCreery  v.  Allender,  147. 

V.  Day,  420,  425. 
McCrillis  v.  Allen,  200. 

V.  Bartlett,  181,  187. 

V.  How,  IGO. 
McCroskoy  v.  Ladd,  452. 
I  McCroy  v.  Torey,  81. 
McCulloch  v.  Insurance  Co.,  26. 
McCuIlough  v.  Ashbridge,  397. 

V.  Day,  54. 

v.  Hellwig,  396. 
McCuIlough    Iron    Co.    v.    Carpenter. 

430. 
McCurdy  v.  Rogers,  517,  518. 
McOurry  v.  Gibson,  311. 
McCusker  v.  Spier.  400. 
McDonald  v.  Auideugarten,  274,  335. 


I 


I 


McDonald  v.  Dana,  395. 

V.  r'lemiug,  301. 

V.  Haughton,  302 

V.  Kneeland,  370, 

V.  Longbottom,  395. 

v.  Lund,  337. 

V.  Lynch,  542. 

V.  Magruder,  3S5,  534. 

V.  Sargent,  151. 

V.  Youngbluth,  95. 
McDonougli  V.  Marble  Co.,  453. 

V.  Webster,  339. 
McDougal  V.  Dougherty,  441, 
McDowell  V.  Laev,  358. 
McEacheran  v.  Railroad  Co.,  320. 
McElfati'ick  v.  Hicks,  274. 
MacElree  v.  Wolfersberger,  77. 
McElroy  v.  Buck,  83. 

V,  Ludlum,  80,  92. 

V.  Seery,  84,  88. 

V.  Sw'ope,  75. 
McElven  v.  Sloan,  109. 
McFadden  v.  Henderson,  409. 
McFarlaud  v.  Bank,  274. 

V.  Sikes,  392. 
McFarlane  v.  Cushman,  494. 
McGan  v.  Marshall,  170. 
McGarren  v.  McNulty,  432. 
McGarvey  v.  Roods,  17. 
McGati-ick  v.  Wason,  267. 
McGee  v.  Craven,  74. 
McGibbons  v.  Wilder,  228. 
McGinn  v.  Tobey,  197,  198,  229,  249. 
McGinnis  v.  Fernaudes,  96. 
McGlynn  v.  Scott,  124. 
McGoren  v.  Avery,  545. 
McGovern  v.  Hern,  84. 
McGrath  v.  Cannon,  453. 

V.  Clark,  479,  481. 

V.  Gregner,  441. 

V,  Merwin,  2G8. 
McGraw  v.  Solomon,  239. 
MacGreal  v.  Taylor,  173. 
McGregor  v.  Balch,  380. 

V.  McGregor,  78. 

V.  Railway  Co.,  540. 
McGrew  v.  Produce  Exchange,  279. 
Machesney  v.  Brown,  521. 
Mclniffe  v.  Wheelock,  441. 
Mcintosh  V.  Johnson,  130. 
Mcintosh  V.  Zaring,  382. 
Mclntyre  v.  Kennedy,  436. 

V.  Park,  506. 

V.  Parks,  329. 


CASES  CITED.  611 

[The  figures  refer  to  pages.] 

McJiltou  V.  Love,  493. 
Mack  V.  Miller,  VJ2. 
McKamy  v.  Cooper,  152,  168,  177. 
McKanna  v.  Merry,  156,  157,  159. 
Mackay  v,  Bloodgood,  500. 
McKee  v.  Jones,  343. 
McKeever  v.  Beacom,  260. 
McKenna,  Ex  parte,  280. 

V,  Kii-kwood,  369. 
MacKensie  v.  Coulson,  401. 

V.  Culbreth,  130,  131. 

V,  Donuell,  184. 

V.  Flannery,  273. 

V.  Harrison,  130. 

V.  Nevins,  508,  517. 
Mackerell  v.  Batchelor,  156, 
McKewan  v.  Sanderson,  258. 
Mackey  v.  Peterson,  198. 

V.  Smith,  68. 
McKinley  v.  Irvine,  510. 

V.  McGregor,  188. 

V.  Watkins,  21,  119,  122,  124. 
McKlnnell  v.  Robinson,  330. 
McKinney  v.  Alvis,  422. 

V.  Andrews,  330. 

V.  Bradlee,  428. 

V.  Harvie,  92,  552. 
McKinnis  v.  Estes,  268. 
McKinnou  v.  McEwan,  487. 

V.  McKinnon,  75. 

V.  Vollmar,  216,  524. 
Macklem  v.  Fales,  227. 
McKnight  v.  Dunlop,  102. 
MacKnight  Flintic  Stone  Co.  v.  New- 
York,  460. 
McLanahan  v.  Insurance  Co.,  214, 
McLaren  v.  Hall,  501. 
Maclay  v.  Harvey,  27,  28,  31. 
McLean  v.  McBean,  110. 
McLellan  v.  Bank,  381. 

V.  McLennan,  344. 
McLeod  V.  Barnum,  471. 
Maclure,  Ex  parte,  449,  553. 
McMahan  v.  Smith,  293. 
McManus  v.  Bank,  492. 

V.  Boston,  83. 

V.  Cooke,  93. 
McMaster  v.  Merrick,  438. 
McMasters  v.  Railroad  Co.,  398. 
McMichael  v.  Carlyle,  55, 
McMicken  v.  Safford.  123, 
McMillan  v.  Ames,  33,  59. 

V.  Fox,  476. 

V.  Harris,  258. 


612 


CASES   CITED. 
[The  figures  refer  to  pages.] 


McMillan  v.  Page,  18. 
McMinn  v.  Ricbmouds,  160. 
McMullen  v.  Hoffman,  290,  322,  337. 
McMui-phy  V.  Garland,  424. 
McNair  v.  Toler,  148. 
McNairy  v.  Bell,  272. 
McNaughton  v.  Partridge,  58. 
McNeil  V.  Armstrong,  433. 
McNish  V.  Reynolds,  420,  426. 
Macomb  v.  Wilkinson,  31)1. 
McPherson  v.  Cox,  78,  244,  299. 

V.  Robertson,  414. 

V.  Ryan,  488. 

V.  Watt,  510. 
McQuade  v.  Roseeranz,  323. 
McRaven  v.  Crisler,  483. 
McSliane  v.  Hazelhurst,  235. 
McSparran  v.  Neeley,  188. 
Mactier's  Adm'rs  v.  Frith,  22,  26,  27, 

30,  37. 
McVeigh  v.  U.  S.,  148. 
McWhinne  v.  Martin,  94. 
McW'illiam  v.  Webb,  362. 
Maddick  v.  Marshall,  514. 
Maddison  v.  Alderson,  93. 
Maddox  v.  Simmons,  179. 
Maddux  t.  Bevan,  131. 
Magee  v.  Lumber  Co.,  428,  433. 

V.  Scott,  269. 

V.  Welsh,  158. 
Magill  V.  Stoddard,  393. 
Magoon  v.  Reber,  241. 
Maguire  v.  ESchmeier,  483. 

V.  Smock,  291. 
Mahana  v.  Blunt,  94. 
Mahler  v.  Newbauer,  441. 
Maine  v.  Railroad  Co.,  319. 
Main  St.  &  A.  P.  R.  Co.  v.  Traction 

Co.,  128. 
Maitland  v.  Martin,  508. 
Majestic,  The,  19. 
Makin  v.  Watkinson,  461. 
Malcomson  v.  W^apjwo  Mills,  475. 
Mallan  v.  May,  59,  403. 
Mallon  V.  May,  324. 
Mallory  v.  Gillett,  69-71. 

y.  Leach,  222. 
Mallory's  Adm'rs  v.  Mallory's  Adm'r, 

72. 
Malone  v.  Philadelphia,  412. 

V.  Railroad  Corp.,  20. 
Maloney  v.  Nelson,  339. 
Maltby  v.  Austin,  409. 
Manby  v.  Scott,  188. 


Manchester  Paper  Co.  v.  Moore,  395. 
Manchester  &  L.  R.  Co.   v.  Railroad 

Co.,  194. 
Mandeville  v.  Harman,  310,  311. 

v.  Welch,  366,  367. 
Mandlebaum   v.   Gregovich,  26L 
Maness  v.  Henry,  419. 
Mangles  v,  Dixon,  369. 
Manhattan  Oil  Co.  v.  Lubricating  Co., 

120. 
Mann  v.  Farnum,  19. 
Manning  v.  Gasharie,  505. 

V.  Johnson,  153,  173,  177,  178. 

V.  Riley,  73. 

V.  Sprague,  299. 
Manor  v.  Pyue,  16. 
Manry  v.  Waxelbaum  Co.,  24. 
Mansfield  v.  Gordon.  162. 

V.  Hodgdon,  33. 

T.  Inhabitants,  399. 

V.  Lynch,  544. 

V.  Sherman,  490. 

V.  Watson,  186,  187,  237. 
Mansfield  &  S.  O.  R.  Go.  v.  Veeder, 

402. 
Manter  v.  Churchill,  122. 
Manuel  v.  Wulff,  147. 
Manufacturers'   Bank  v.   Follett,  480. 
Maple  V.  Railroad  Co.,  522. 
Maples  v.  Wightman,  153. 
Marble  v.  Oil  Co.,  43. 
Marble  Co.  v.  Ripley,  490. 
Marble  Sav.  Bank  v.  Mesarvey,  356, 

357. 
March  v.  Ward,  415. 
Marchant  v.  Hayes,  431. 
Marcy  v.  Marcy,  SO. 
Marden  v.  Champlin,  83. 
^laricle  v.  Brooks,  241. 
Marie  v.  Garrison,  258. 
Markland  Min.  &  Mfg.  Co.  v.  Kimmel, 

407. 
Markle  v.  Hatfield,  435. 
Marquis  v.  Lam-etson,  393. 
Marr  v.  Shaw,  37. 
Marriuer  v.  Denuison,  233,  393. 
Man"yat  v.  Marryat,  58. 
Marschall  v.  Vineyard  Co.,  83. 
Marsh  v.  Chown,  137. 

V.  Falker,  229. 

V.  Garuey,  367. 

V.  Gold,  327. 

V.  Grithn,  479. 

V.  Hyde,  102,  104. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


613 


Marsh  v.  Keating,  539. 

V.  McPbersou,  467. 

V.  Raiusford,  138. 

V.  House,  102. 

V.  Russell,  314. 

V.  \Aebber,  224. 
Marshall  v.  Ferguson,  76. 

V.  Gougler,  481. 

V.  Green,  76. 

V.  Lynn,  65. 

V.  Marshall,  179. 

V.  Perry,  39S,  399,  464. 

V.  Railroad  Co.,  2S5. 

V.  Rice,  271. 

V.  Rutton,  188. 
Marshalltown  Stone  Co.  v.  Mfg.  Co., 

107,  121. 
Marston  v,  Bigelow,  355. 

V.  Insurance  Co.,  390. 
Martendale  v.  Follett,  481. 
Martin  v.  Amos,  297. 

V.  Batchelder,  79. 

V.  Black,  124. 

V.  Crump,  382. 

V.  Deetz,  488. 

V.  Drinan,  376. 

V.  Dwelly,  188,  190. 

V.  Flaharty,  56. 

V.  Fuel  Co.,  28. 

V.  Hall,  398. 

V.  Hamlin,  478. 

V.  Hudson,  31. 

V.  Hunt,  476. 

V.  Insurance  Co.,  482. 

V.  McCormick,  207. 

V.  Maynard,  398. 

V.  Nixon,  122. 

V.  Richardson,  369. 

V.  Royster,  282. 

V.  Shoenberger,  457. 

V.  Smith,  197,  394,  52a 

V.  Thomas,  481,  482. 
V.  Veeder,  298. 
V.  Wade,  283. 
Martindale  v.  Smith,  410. 
Martine  v.  lusm-ance  Co.,  476,  529. 
Martinsburg   &   P.   R.   Co.   v.   March, 

460. 
Martus  v.  Houck,  550. 
Marvel  v.  Phillips,  378,  470. 
Marvin  v.  Inglis,  181. 

V.  Marvin,  243. 

V.  Treat,  40. 
Marx  V,  McGlynn,  249. 


Maryland   Coal   Co.   v.   Railroad   Co., 

403. 
Maryland   Fertilizing   &   Mfg.   Co.   v. 

Ivorentz,  466. 
Mascolo  V.  Montesanto,  123,  242. 
lilaslin  V.  Hiett,  381. 
Mason  v.  Caldwell,  503. 

V.  Campbell,  131,  138.  492. 

V.  Douglas,  436. 

V.  Eldred,  380,.  493. 

V.  Hall,  356. 

V.  McLeod,  341. 

V.  Prendergast,  541. 

V.  Taylor,  515. 

V.  Wright,  150,  158. 
Massachusetts  Gen.  Hospital  v.  Fair- 
banks, 16,  181. 
Massachusetts   Loan  &   Trust  Co.  v. 

Welch,  369. 
Massey  v.  Wallace,  301,  323. 
Masson  v.  Bovet,  236,  238. 
Master  v.  Miller,  363,  479. 
Masterson  v.  Howard,  147. 
Master   Stevedore's   Ass'n   v.   Walsh, 

317. 
Mastin  v.  Marlow,  252. 
Masury  v.  Southworth,  373-376. 
Materue  v.  HorAvitz,  257. 
Mathews  v.  Cowan,  176. 

v.  Toogood.  273. 
Mathis  V.  Thomas,  441. 
Matson  v.  Blosson,  275. 

V.  Wharam,  67. 
Matteson  v.  Ellsworth,  483. 

V.  Holt,  464. 
Matthews  v.  Baxter,  186,  187. 

V.  Bliss,  222. 

V.  Coe,  273. 

V.  Milton,  67,  68. 

v.  Paine,  343,  344. 
Matthiessen  &  Weichers  Refining  Co. 

v.  McMahon's  Adm'r,  183,  528. 
Mattingly  v.  Lewisohn,  494. 
Mattock  v.  Kinglake,  451,  452, 

V.  Reppy,  237. 
Maurer  v.  Midway,  380, 
Maurin  v.  Fogelberg,  68. 
Maury  v.  Iron  Co.,  399. 
Maxfield  v.  West,  93. 
Maxwell  v.  Allen,  412. 

V.  Brown,  101. 

V.  Day.  423. 

V.  Griswold,  244. 

V.  Lee,  467. 


6U 


May  V.  Crawford,  412. 

V.  Flint,  274. 

V.  Telegraph  Co.,  518. 

V.  Ward,  85. 

V.  Williams,  70. 
Mayer  v.  New  York,  542. 
Maynard  v.  Hill,  7. 

V.  Maynard,  224. 

V.  Polhemus,  376. 

V.  Tabor,  30. 
Mayor  v.  Schaub  Bros.,  455. 
Mayor,  etc.,  of  Alexandria  V.  Patten. 

437. 
Mayor,  etc.,  of  Allegheny  v.  Railroad 

Co.,  400. 
Mayor,  etc.,  of  New  York  v.  Railroad 

Co.,  406. 
Mayo's  Ex'r  v.  Qirrington's  Ex'r,  252. 
Mays  V.  Williams,  346. 
Meacham  v.  Dow,  283. 

V.  Meacham,  74. 
Mead  v.  Bunn,  228. 

V.  Hughes,  190. 

V.  Parker,  86. 

V.  Spalding,  501. 

V.  Watson,  67,  68. 
Meadow  v.  Bird,  335. 
Meadows  v.  Meadows,  90. 
Mechanical  Boiler  Cleaner  Co.  v.  Kell- 

ner,  100. 
Mechanics'  &  Traders'  Nat.  Bank  v. 

Crow,  335. 
Mecorny  v.  Stanley,  122. 
Medbury  v.  Watrous,  175,  553. 

V.  Watson,  227. 
Medrano  v.  State,  243. 
Meech  v.  Lee,  293. 
Meehan  v.  Shai-p,  101,  102. 
Meek  v.  Atkinson,  242. 
Meekins  v.  Newberry,  393. 
Meguire  v.  Corwine,  283,  287.^ 
Mehan  v.  Thompson,  436. 
Mehlhop  V.  Rae,  162,  166. 
Meigs  V.  Dexter,  55. 
Melcher  v.  Flanders,  389. 
Melchers  v.  Springs,  21. 
Melcholr  v.  McCarty,  265,  270. 
Mellish  V.  Robertson,  207. 
Mellon  V.  Davison,  86. 
Memphis  &  C.  R.  Co.  v.  Reeves,  420. 
Menage  v.  Rosenthal,  400.  407. 
Menkius  v.  Lightner,  179. 
Mentz  V.  Insurance  Co.,  295. 
V.  Newitter,  84. 


CASES   CITED. 
[The  figures  refer  to  pages.] 
Merchant  v 


O'Rourke,  22,  114, 
Merchants'  Bank  v.  Rawls,  537. 

v.  Weill,  369. 
Merchants'  Ins.  Co.  v.  Prince,  400. 
Merchants'  Nat.  Bank  v.  Bank,  544. 
Merchants'  &  Farmers'  Nat.  Bank  v. 

McElwee,  392. 
Merck  v.  Mortgage  Co.,  273. 
Meredith  v.  Crawford,  176. 
Meriden  Britannia  Co.  v.  Zingsen,  69. 
Meriwether  v.  Smith,  268. 
Meroney  v.  Ass'n,  344. 
Merriam    v.    Cunningham,    156,    158, 
159,  177. 

V.  Lumber  Co.,  356. 

V.  U.  S.,  395. 

v.  Wolcott,  469. 
Merrick  v.  Giddings,  129. 

V.  Wiltse,  464. 
Merrick's  Estate,  In  re,  517,  528.  ~ 
Merrick  Thread  Co.  v.  Mfg.  Co.,  505. 
Merrill  v.  Downs,  268. 

V.  Kenyon,  519,  521. 

V.  Packer,  275. 

V.  Peaslee,  304. 

V.  Wilson,  237,  505. 
Merritt  v.  Bucknam,  257. 

v.  Clason,  500. 

V.  Gumaer,  179. 
Merry  v.  Lynch,  529. 
Merryfield  v.  Willson,  545. 
Merryman  v.  David,  510. 
Merryweather  v.  Nixan,  534. 
Mers  V.  Insurance  Co.,  119. 
Mersereau  v.  Lewis,  70. 
Mersey  Steel   &  Iron  Co.   v.   Naylor, 

410,  455,  456. 
Mersman  v  Werges,  479,  481, 
Merwin  v.  Arbuckle,  230. 
Messer  v.  The  Fadettes,  257. 
Messmore  v.  Cunningham,  85,  94. 
Metcalf  v.  Kincaid,  305. 

V.  Williams,  520. 
Methven  v.  Power  Co.,  370. 
Metropolitan  Ins.  Co.  v.  McCoy,  58. 
Mette  V.  Feltgen,  175. 
Mettel  V.  Gales,  426. 
Meux  V.  Bell,  368. 
Newbum's  Heirs  v.  Bass,  96. 
Meyer  v.  Dremer,  399. 

V.  Estes,  380. 

V.  Hartman,  70. 

V.  Hownrth,  141,  188. 

V.  Huueke,  483. 


CASES  CITED. 
[The  figures  refer  to  pagea.] 


615 


Meyer  v.  Muscatine,  273. 

V.  liicliards,  4Gi). 
Meyers  v.  Hockenbury,  122. 
Michael  v.  Bacon,  330. 

V.  Jones,  512,  519. 
Michals  v.  Godts,  4(i3. 
Micliigan  Bolt  &  Nut  Co.  v.  Steel,  29, 

120. 
Michigan    Cent.    R.    Co.    v.    Coleman, 

398. 
Michigan  Cent.  R.  Co.  v.  Mfg.  Co.,  20. 
Michigan  S.  &,  N.  I.  R.  Co.  v.  McDon- 

ough,  429. 
Middlebury  College  v.  Chandler,  156. 
Middlesex  Water  Co.   v.  Knappmann 

Whiting  Co.,  473. 
Middleton  v.  Hoge,  168. 
Mighell  V.  Dougherty,  100. 
Mihills  Mfg.  Co.  v.  Day,  487. 
Milberry  v.  Storer,  483. 
Miles  V.  Ass'n,  299,  300. 

V.  Iron  Co.,  116. 

V.  Lingerman,  175. 

V.  New  Zealand,  etc.,  Co.,  125. 

V.  Ogden,  505. 

V.  Schmidt,  295. 

V.  Stevens,  203. 
Milks  V.  Rich,  71. 
Millard  v.  Barton,  198. 

V.  Hewlett,  176. 
Mill-Dam  Foundry  v.  Hovey,  466. 
Miller  v.  Ammon,  260. 

V.  Baker,  76. 

V.  Ball,  94. 

V.  Bryden,  243. 

V.  Covert,  493. 

V.  Craig,  204. 

V.  Douville,  32. 

V.  Edgerton,  390. 

V.  Bldredge,  96. 

V.  Elliott,  311. 

V.  Finley,  186,  481. 

V.  Fletcher,  56. 

V.  Gilleland,  480. 

V.  Goddard,  462. 

Y.  Hirschberg,  326. 

V.  Kendig,  44. 

V.  Lynch,  69. 

V.  Marckle,  337. 

V.  Miller.  240,  243,  304,  439,  538. 

V.  Minor,  246. 

V.  Moore,  398. 

V.  Post,  261,  263. 

V.  Reed,  480. 


Miller  v.  Simonds,  250. 

V.  Sims,  161,  102. 

V.  Smith,  156,  173. 

V.  Way,  520. 

V.  Wilson,  97. 
Millerd  v.  Thorn,  423. 
Milliken  v.  Barrow,  147. 
Million  v.  Ohnsorg,  298. 
Mills  V.  Bank,  398. 

V.  Guardians  of  the  Poor,  542. 

V.  Mills,  285. 

V.  Williams,  267. 

V.  Wyman,  109,   138,  140,  142. 
Millsaps  V.  Bank,  421. 
Mills  Pub.  Co.  V.  Larrabee,  145. 
Miln  V.  Patty,  437. 
Mllues  V.  Duncan,  542. 
Milroy  v.  Iron  Co.,  366. 
Milwaukee  Masons'  &  Builders'  Ass'n 

V.  Niezerowski,  313,  318. 
Milwaukee  &  St.  P.  R.  Co.  v.  Railroad 

Co.,  299. 
Minard  v.  Mead,  841. 
Miner  v.  Lormau,  496. 
Minett  v.  Forrester,  527. 
Ming  V.  Corbin,  453, 

V.  Wolfolk,  232. 
Minis  V.  Nelson,  398,  400. 
Minneapolis    Land    Co.    v.    McMillan, 

112. 
Minneapolis  &  St.  L.  Ry.  Co.  v.  Mill 

Co.,  28,  29,  36. 
Minnesota   Linseed   Oil    Co.    v.    Lead 

Co.,  26,  27,  31. 
Minnesota    Lumber   Co.    v.   Coal    Co., 

45,  120. 
Minock  v.  Shortridge,  153,  160,  162. 
Minor  v.  Sharon,  224. 
Minshull  v.  Oakes,  374. 
Minturn  v.  Main,  515. 
Minzesheimer  v.  Doolittle,  337. 
Miskey's  Appeal,  248. 
Misner  v.  Knapp,  277. 
Missisquoi  Bank  v.  Sabin,  117. 
Mississippi  &  D.  S.  S.  Co.  v.  Swift,  43. 
Mississippi  &  T.  R.  Co.  v.  Green,  474. 
Missouri  Pac.  R.  Co.  v.  Railroad  Co., 

21. 
Mitchel  V.  Reynolds,  306. 
Mitchell  V.  Beck,  71. 

V.  Dougherty,  295. 

V.  Hawley,  491. 

V.  Homfray,  250. 

V.  Kingman,  179. 


G16 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Mitchell  V.  McDougall,  216,  223. 

V.  Merrill,  440. 

V.  Railton,  200. 

V.  Reynolds,  306. 
Mitcbell  V.  Scott,  265. 

V.  Vance,  283. 

V.  Wedderburn,  407. 
Mitcbell's  Lessee  v.  Ryan,  54,  55. 
Mitcliinson  v.  Hewson,  151. 
Mitteuthal  v.  Mascagnl,  295. 
Mitts  V.  McMoran,  69. 
Mixer  v.  Howartb,  100. 

V.  Sibley,  148. 
Moale  V.  Hollins,  478. 
Mobberly  v.  Mobberly,  394. 
Mobile  Sav.  Bank  v.  McDonnell,  390. 
Mobile  &  M.  R.  Co.  v.  Jurey,  393,  404, 

575. 
Mobray  v.  Leckie,  414. 
Moffett    Hodgkins    &    Clarke    Co.    v. 

Rochester,  206,  401. 
Mohler  v.  Carder,  216. 
Mohney  v.  Evans,  159. 
Mohr  V.  Miesen,  278,  280,  334,  342. 

V.  Tulip,  182. 
Moley  V.  Brine,  154. 
Moline  Milburn  Co.  v.  Franklin,  233. 
Moloney  v.  Nelson,  339. 
Molton  V.  Camroux,  183. 
Monarch  Cycle  Mfg.  Co,  v.  Wheel  Co., 

410,  456. 
Moncrieff  v.  Goldsborough,  258. 
Mondel  v.  Steel,  469. 
Monmouth  Park  Ass'n  v.  Iron  Works, 
412. 

V.  Warren,  404,  414. 
Monroe  v.  The  Iowa,  319. 
Montag  V.  Linn,  479. 
Montague  v.  Gamett,  80.  91,  552. 
Montana  Min.  Co.  v.  Milling  Co.,  416. 
Montclair  Military   Academy  v.  Rail- 
way Co.,  291. 
Montgomery  v.  Downey,  139. 

V.  Edwards,  91,  96. 

V.  Lampton,  138. 

V.  Rief,  357. 

V.  Waterworks,  530. 
Montgomery  County  v.  Robinson,  38. 
Montgomery  R.  Co.  v.  Hurst,  481. 
Montreal  Lumber  Co.  v.  Mihills,  224, 

230. 
Monumental  Bldg.  As.s'n  v.  Herman, 

159. 
Moody  V.  Blake,  200,  235. 


Moody  V.  Walker,  537. 

V.  Wright,  365. 
Mooney  v.  Davis,  231. 

V.  Iron  Co.,  468,  551. 

V.  Miller,  224. 
Moore  v.  Appleton,  508. 

V.  Ass'n,  237. 

V.  Bevier,  382. 

V.  Campbell,  427. 

V.  Cross,  225. 

V.  Earl,  57. 

V.  Elmer,  139. 

V.  Flynn,  55. 

V.  Garwood,  545. 

V.  Giles,  54. 

V.  Hershey,  184. 

V.  I  vers,  482. 

V.  Kiff,  438. 

V.  Lockett,  513. 

V.  Locomotive  Works,  128,  419. 

V.  McKenney,  123. 

V,  Mandelbaum,  510. 

V.  Moore,  238,  251,  510. 

V.  Norman,  442. 

V.  Pierson,  26,  35. 

V.  Powell,  88. 

V.  Redding,  126. 

V.  Small,  95. 

V.  Stone,  525. 

V.  Tanning  Co.,  194. 
Moote  V.  Seriven,  409. 
Mordecai  v.  Dawkins,  331,  483,  490. 

V.  Pearl,  173. 
More  V.  Bennett,  316. 

V.  Bonnet,  308,  324. 
Morehouse  v.  Bank,  492. 

V.  Comstock,  469. 
Moreland  v.  Atchison,  226. 

V.  Hougton,  500. 
Morley  v.   Lake  Shore  &  M.   S.   Ry., 

531. 
Morford  v.  White,  549. 
Morgan  v.  Andrews,  350. 

V.  Bii'nie,  460. 

V.  Randolph   &   Clowes  Co.,   354. 
Morison  v.  Thompson,  509. 
Morley  v.  Attenborough,  546. 
Morrell  v.  Quarles,  38,  284. 
Morrill  v.  Aden,  169. 

V.  Blackman,  221. 

V.  Everson,  115. 

V.  Nightingale,  243. 
Morris  v.  Brightman,  42. 

V.  Gaines,  70. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


617 


Morris  v.  Henderson,  298. 

V.  Mfg.  Co.,  ;'.U7. 

V.  Norfolk,  ISS. 

V.  Norton,  109. 

V.  Osterbout,  67. 

V.  Turin,  541. 

V.  Telegraph  Co.,  278. 

V.  Thompson,  22-1. 
Morrison  v.  Bennett,  337. 

V.  Davis,  429. 

V.  Faulkner,  241,  243. 

V.  Garth,  479. 

V.  Herrick,  94. 

V.  Kendall,  422. 

V.  Orr,  509. 

V.  Rogers,  303. 

V.  Smith,  436. 
Morris  Run  Coal  Co.  v.  Coal  Co.,  313. 
Morriss  v.  Harveys,  436. 
Morrissey  v,  Broomal,  429. 

V.  Perry,  152. 
Morrow  v.  Express  Co.,  120. 
Morse  v.  Bellows,  15,  38. 

V.  Braekett,  238. 

V.  Crate,  140. 

V.  Ely.  174. 

V.  Moore,  463,  467. 

V.  Rathbun,  412. 

V.  Ryan,  283. 

V.  Tappan,  531,  533. 

V.  Wheeler,  167. 

V.  Woodworth,  241,  243. 
Morse   Twist   Drill.    &   Mach,    Co.   v. 

Morse,  316. 
Morss  V.  Salisbury,  403. 
Mortland  v.  Mortland,  60. 
Morton  v.  Bum,  363. 

V.  Dean,  90. 

V.  Lamb,  451,  459,  461. 

V.  Nelson,  75. 

V.  Scull,  230. 

V.  Stewart,  160. 

V.  Thurber,  273. 
Morton's  Adm'r  v.  Morton,  251. 
Morville  v.  Society,  193. 
Mory  V.  Michael,  354. 
Moseley  v.  Boush,  364. 

V.  Vanhooser,  268. 
Moseley's  Adm'rs  v.  Buck,  510. 
Moses  V.  Arnold,  537. 

V.  Bank,  87. 

V.  McClain,  87,  120. 

V.  Macferlan.  541. 

T.  Stevens,  176. 


Moss  V.  Atkinson,  83. 
Motherway  v.  Wall,  206,  226. 
Motley  V.  Head,  528. 
Mott  V.  Mott,  182. 

V.  Oppenheimer,  375. 

V.  Rowland,  343. 
Motz  V.  Mitchell,  243. 
Moulton  V.  Han-is,  94. 

V.  Kershaw,  41,  42. 
Mound  V.  Barker,  328. 
Moimt  V.  Scholes,  494. 

V.  Waite,  340. 
Mountstephen  v.  Brooke,  380. 

V.  Lakeman,  67,  68. 
Mowatt  V.  Wright,  543. 
Moyer  v.  Cantieny,  286,  287. 
Muckenburg  v.  Holler,  304. 
Mudgett  V.  Clay,  &4. 
Mueller  v.  Northwestern  University, 

365. 
Muir  V.  Schenck,  367,  370. 
Mulford  V.  Bowen,  276. 
Mulgi-ew  V.  Cocharen,  422. 
Mulhall  V.  Quiun,  304,  365. 
Mulholland  v.  Bartlett,  125. 
Mullalieu  v.  Hodgson,  257. 
Muller  V.  Eno,  4G4. 

V.  Kelly,  197. 

V.  Pondir,  508. 
Mulvany  v.  Gross,  70. 
Mulvey  v.  King,  216. 
Mumford  v.  Whitney,  76. 
Munday  v.  Whissenhunt,  298. 
Mungan  v.  French,  381. 
Munn  V.  Commission  Co.,  271,  514. 
Munroe  v.  Perkms,  128,  420,  425. 

V.  Pritchett,  216. 
Munson  v.  Steamship  Co.,  295. 

V.  Washband,  156. 
Murchie  v.  Cornell,  463. 
Murdock  v.  Finney,  370. 
MiU'phy  V.  Crawford,  141,  142. 

V.  English,  291. 

V.  Helmrich,  520. 

V.  Jones,  470. 

V.  Webber,  437,  438. 

V.  Weil.  381. 
Murray  v.  Brooks,  398. 

V.  Flavell,  353. 

V.  Harway,  418. 

V.  Mayo,  505. 

V.  Mumford,  382. 

V.  Parker,  401. 

V.  Pillsbury,  407. 


618 

Murray  v.  Snow,  133. 

V.  Wakelield,  286. 
Murto  V.  McKniglit,  69. 
Musick  V.  Dodson,  141,  142,  188. 
Musselman  v.  Cravens,  180. 

V.  Stoner,  426. 
Musser  v.  Ferguson  Tp.,  108. 
Mustard    v.    Woblford's    Heirs,    151, 

153,  170,  172,  173,  175,  178. 
Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard, 
147,  148. 

V.  Wise,  215. 
Mutual  Life  Ins.  Co.  v.  Hunt,  183 

V.  Watson,  367. 
Mutual   Reserve  Fund  Life  Ass'n  v. 
Taylor,  444. 

V.  Woolen  Mills,  294. 
Mutual  Sav.  Inst.  v.  Bnslin,  544. 
Myer  v.  Grafflin,  68. 

V.  Hart,  413. 

V.  Wheeler,  455. 
Myers  v.  Jenkins,  296. 

v.  Knabe,  183. 

V.  Meinratli,  269,  337. 

V.  Munson,  389. 

V.  Nell,  484. 

V.  Smith,  535. 

V.  Tibbals,  397. 
Mygatt  V.  Coe,  375. 

V.  Tarbell,  28,  74,  121. 
Myrick  v.  Dame,  382. 

N 

Nagle  V.  McMurray,  19, 
Nalle  V.  Paggi,  375. 
Nally  V.  Reading,  92. 
Napier  v.  McLeod,  382. 
Nash  V.  Armstrong,  122,  425. 

V.  Jewett,  177. 

V.  Lull,  112,  469. 

V.  Skinner,  380. 

V.  Tovi^ue,  404. 

V.  Trust  Co.,  224,  232. 
Nashua    &    L.    R.    Corp.    v.    Railroad 

Corp.,  194. 
Nashville  &  C.  R.  Co.  v.  David,  429. 
Nassoiy  v.  Tomlinson,  132,  492. 
National  Bank  v.  Danforth,  273. 

v.  Fink,  284. 

V.  Rising.  483. 

v.  Sognr,  370. 
National  Ben.  Co.  v.  Hospital  Co.,  809. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


National    Contracting    Co.    r.    Water 

Power  Co.,  295. 
National   Enameling  &  Stamping  Co. 

V.  Haberman,  309. 
National  Exeh.  Bank  v.  McLoon,  366. 
National  Harrow  Co.  v.  Hench,  316. 

V.  Quick,  316. 
National  Park  Bank  v.  Levy,  435. 
National  Refining  Co.  v.  Miller,  32. 
National   Shoe  &  Leather  Bank,   Ap- 
peal of,  519. 
National  Ti-ust  Co.  v.  Gleason.  539. 
Nauman  v.  Oberle,  235. 
Neal  V.  Allison,  438. 

V.  Reynolds,  237. 

V.  Saunderson,  429. 
Nealey  v.  Greenough,  242. 
Neate  v.  Harding,  538. 
Neblett  v.  Macfarland,  238, 
Nebraska  &  I.  Ins.  Co.  v.  Seivers,  63. 
Needles  v.  Burk,  544. 

V.  Needles,  365. 

V.  Shaffer,  480. 
Neff  V.  Horner,  479,  481,  482. 

V.  Landis,  178,  238. 
Negley  v.  Jeffers,  65,  426. 
Neibert  v.  Baghurst,  93. 
Neibles  v.  Railway  Co.,  123. 
Neidefer  v.  Chastain,  469. 
Neill  V.  Shamburg,  227. 
Neiswanger  v.  McClellan,  70. 
Nelson  v.  Beck,  264. 

V.  Boynton,  68,  69,  71. 

v.  Brush,  299. 

V.  Improvement   Co.,   85,   92,   95, 
552. 

v.  Rogers,  357. 

V.  State,  267. 

V.  Suddarth,  244. 
Nelson's  Will,  247. 
Nerac's  Estate,  In  re,  148,  149. 
Nesbitt  V.  Helser,  502. 
Nester  v.  Brewing  Co.,  313. 
Neustadt  v.  Hall,  283. 
Newberry  Land  Co.  v.  Newberry,  356. 
Newbigging  v.  Adam,  218. 
New  Brunswick  &  C.  R.  Ob.  v.  Mug- 

geridge,  216. 
Newburg    Petroleum    Co.    v.    Weare, 

374. 
Newby  v.  Hill,  370. 
Newcastle  Mfg.  Co.  v.  Railroad  Co., 
517. 


CASKS   CITED. 
[The  figures  refer  to  pages.] 


(il9 


Newcomb  v.  Brackett,  448. 
V.  Clark,  84,  118. 
V.  Raynor,  381. 
Newcomer  v.  Kliue,  208. 
Newell  V.  Bank,  273. 
V.  Fisher,  18G. 
V.  March,  544. 
V.  Meyendorff,  307. 
V,  Radford,  84. 
V.  Randall,  222. 
New  England  Dressed  M.  &  W.  Co.  v. 

Standard  W.  Co.,  395. 
New  England  Mortgage  Security  Co. 
V.  Gay,  273,  390. 
V.  Townes,  274. 
Newhall  v.  Appleton,  896. 
V.  Clark,  404. 
V.  Wyatt,  541. 
Newhall  Engineering  Co.  v.  Daly,  449. 
New    Hampshire    Ins.    Co.   v.   Noyes, 

158. 
New  Haven  &  N.  Co.  v.  Hayden,  415. 
Newman  v.  Freitas,  304. 

V.  Reagan,  430. 
Newport  News  &  M.  V.  Co.  v.  McDon- 
ald Brick  Co.'s  Assignee,  474. 
Newsom  v.  Luster,  389. 
Newsome  v.  Graham,  545. 
Newton  v.  Bronson,  91,  506. 

V.  Tolles,  204. 
Newton  Mfg.  Co.  v.  White,  549. 
New   York   Bowery   Fire  Ins.   Co.  v. 

Insurance  Co.,  214. 
New  York  Building  Loan  Banking  Co. 

V.  Fisher,  177. 
New  York  Cent.  R.  Co.  v.  Lockwood, 

319. 
New  York  Guaranty  &  Indemnity  Co. 
V.  Gleason.  .539. 
V.  Water  Co.,  364. 
New  York  Life  Ins.  Co.  v.  Aitkin,  357. 
V.  Davis,  147. 
V.  Fletcher,  215. 
V.  Statham,  410. 
New  York  &  N.  H.  R.  Co.  v.  Pixley, 

15. 
Niagara,  The,  v.  Cordos,  429. 
Niagara  Fire  Ins.  Co.  v.  Greene,  77, 

93. 
Nibert  v.  Baghurst.  266. 
Nicol  V.  Fitch,  475. 
Nicholas  v.  Austin.  425. 
Nicholl  V.  U.  S..  14.3. 
Nichols  V.  Bruns,  524. 


Nichols  V.  Fearson,  271. 

V.  Haines,  500. 

V.  Johnson,  482. 

V.  McCarthy,  249. 

V.  McMichael,  222. 

V.  Mudgett,  283,  291. 

V.  Raynbred,  117,  118, 

V.  Steel  Co.,  445. 

V.  Weaver,  81. 
Nichols,  Shepard  &  Co.  v.  Burch,  390. 
Nicholson  v.  Oombs,  479.  481. 

V.  Spencer,  150,  157,  159. 

V.  Wilborn,  151,  157. 
Nichols  &  Shepard  Co.  v.  Snyder,  172. 

V.  Soderquist,  470. 
Nickelson  v.  Wilson,  294. 
Xickerson  v.  Wheeler,  534. 
Nicrosi  v.  Phillipi,  147. 
Niebuhr  v.  Schreyer,  272. 
Niemeyer  v.  Wright,  264. 
Nightingale  v.  Devisme,  537. 

V.  Eiseman,  453. 

v.  Withington,  153,  162. 
Nilson  V.  Morse,  444. 
Nispel  V.  Laparle,  493. 
Nixon  V.  Beard,  436. 

V.  Bogln,  498. 
Noble  V.  Ward,  426. 
Nobles  V.  Bates,  308. 
Noble's  Adm'r  v.  Moses,  248,  250. 
Noel  v.  Karper,  180. 

v.  Murray,  436. 
Noetling  v.  Wright,  225. 
Xoice  v.  Brown,  350. 
Nolan  v.  Whitney,  431. 
Nolte  V.  Hill,  400. 
Nonotuck  Silk  Co.  v.  Fair,  399. 
Noonan  v.  Bradley,  406. 
Nordenfelt  v.   Masim-Nordenfelt  Co., 

309. 
Nordholt  v.  Nordholt,  152. 
Nordon  Steam  Co.  v.  Dempsey,  397. 
Nordyke   &   Marmon   Co.   v.   Kehlor, 

201. 
Xorfleet  v.  Cromwell,  373. 
Norman  v.  Cole,  28G. 
V.  Trust  Co.,  180. 

V.  Wells,  373. 
Norrington   v.  Wright,  210,  410,   455, 

456,  463,  465. 
Norrls  v.  Graham,  68. 
V.  Harris,  453. 
V.  Railway  Co.,  429. 
V.  School  Dist,  551.       ^ 


620 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Norrls  v.  Tayloe,  217,  250. 

V.  Vance,  167,  177. 

V.  Vosburgh,  121. 
North  V.  Forest,  100. 

V.  Mallory,  447. 

V.  Mendel,  88. 

V.  Wakefield,  381. 
North   American   Ins.   Co.   v.  Throop, 

215. 
North  British  Ins.  Co.  v.  Lloyd,  217. 
North  Carolina  State  Loan  Ins.  Co.  v. 

Williams,  525. 
North  Chicago  St.   R.  Oo.  v.  Ackley, 

298. 
Northern  v.  State,  76. 
Northern  Cent.  Ry.  Co.  v.  Prentiss,  68. 
Northern    Light    Lodge    v.    Kennedy, 

407. 
Northern  Nat.  Bank  v.  Lewis,  394. 
North  Liberty  Market  Co.   v.   Kelly, 

132. 
North  Platte  M.  &  E.  Co.  v.  Price,  83. 
Northrop  v.  Hill,  233. 
Northrup  v.  Foot,  266. 
Northwestern    Fertilizing    Co.   v.    Vil- 
lage of  Hyde  Park,  406. 
Northwestern  Ins.  Co.  v.  Blankenship, 

183. 
Northwestern  Iron  Co.  v.  Meade,  36. 
Northwestern   R.    Co.    v.    McMichael, 

101. 
Norton  v.  Coons,  534. 

V.  Doherty,  493. 

V.  Norton,  251. 

V.  Tuttle,  299. 
Norvell  v.  Walker,  53. 
Norwood  V.  Lathrop,  432. 
Notley  V.  Buck,  537. 
Nottingham,    etc.,    Soe.    v.    Thurston, 

172,  173. 
Nounnan  v.  Land  Co.,  226. 
Xourse  v.  Prime,  273. 
Nova  Cesarea  Harmony  Lodge  No.  2 

V.  White,  374. 
Nowack  V.  Berger,  114. 
Nowlan  v.  Cain,  228. 
Noyes  v.  Loring,  517,  518. 

V.  Nichols,  404. 

V.  Parker,  545. 

V.  Wyckoff,  441,  442. 
Nugent  V.  Smith,  429. 

V.  Teachout,  552. 

V.  Wolfe,  70. 
Nunez  v-^ Morgan,  96. 


0 


Oakdale  Mfg.  Co.  v.  Garst,  309,  315. 
Oakes  v.  Merrifield,  323. 

V.  Water  Co.,  308. 
Oakey  v.  Ritchey,  251. 
Oakland  Bank  of  Savings  v.  Apple- 
garth,  441. 
Oatfield  V.  Waring,  138. 
Oatman  v.  Walker,  441. 
Obermyer  v.  Nichols,  446. 
O'Brien  v.  Bolond,  33. 

V.  Bound,  3S0. 

T.  Prietenbach,  332. 

V.  Young,  531,  533. 
O'Bryan  v.  Fltzpatrick,  265. 
O'Gonley  v.  Natchez,  537,  538. 
O'Connor  v.  Arnold,  511. 
Odom  V.  Riddick,  180. 
O'Donnell  v.  Brand,  418. 

V.  Leeman,  85,  88. 
O'Donohue  v.  Leggett,  4<X). 
Odum  V.  Railroad  Co.,  442. 
Oelrichs  v.  Artz,  440. 

V.  Ford,  398. 
Oelricks  v.  Ford,  517. 
O'Fallon  v.  Boismeuu,  537. 
Offord  V.  Davies,  31. 
OfCutt  V.  King,  438. 
Ogborn  v.  Hoffman,  132. 
Ogden  V.  Kirby,  464. 

v.  Ogden,  72. 

V.  Raymond,  512,  517. 
Ogilvie  V.  Hallam,  492. 
Ogle  V,  Earl  Vane,  422. 
O'Hara  v.  Carpenter,  286. 
Ohio  Life  Ins.  &  Trust  Co.  v.  Ross, 

370. 
Ohio  Nat.  Bank  v.  Cook,  520. 
Ohio  &  M.  R.  Co.  V.  Trapp,  91 
Ohlendorff  v.  Kanne,  114. 
Oisher  v.  Lazzarone,  297. 
O'Keefe  v.  Allen,  365. 
O'Kelly  V.  Faulkner,  18. 
Old  Colony  R.  Co.  v.  Evans,  89. 
Old  Colony  Trust  Co.  v.  Traction  Co., 

225. 
Oldershaw  v.  King,  123. 
Old  Dominion  S.  S.  Co.  v.  McKonna, 

317. 
Oleson  v.  Merrihew,  494. 
Oliphant  v.  Markham,  244. 
Olive  V.  Olive,  537. 
Oliver  v.  Bank,  518. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


621 


Oliver  v.  Cunningham,  252. 

V.  Holt,  493. 

V.  HoiKllet,  162,  163. 

V.  Hunting,  86. 

V.  Insurance  Co.,  88,  89. 
Olmstead  v.  Bailey,  415. 

V.  Beale,  402. 

V.  Latimer,  126, 
Olson  V.  Sharpless,  88. 
Olt  V.  Lohnas,  81. 
Omaha  Loan  &  Trust  Co.  v.  Goodman, 

31. 
O'Mealey  v.  Wilson,  147. 
O'Neal  V.  Board,  355. 

V.  Hines,  310. 

V.  Knippa,  16. 
Oneida  Bank  v.  Bank,  341. 
O'Neil  V.  Armstrong,  474. 
O'Neill  V.  Armstrong,  449. 

V.  Clark,  358. 
Onion  v.  Paul,  303. 
Opinion  of  Justices,  286. 
Orcutt  V.  Nelson,  329. 
Ordeman  v.  Lawson,  87. 
Ordinary  of  State  v.  Thatcher,  56. 
O'Regan  v.  Steamship  Co.,  343,  345. 
Oi-egonian  Ry.  Co.  v.  Navigation  Co., 

50. 
Oregon  Pac.  R.  Co.  v.  Forrest,  246. 
Oregon    Steam    Nav.    Co.    v.    Winsor, 

308. 
Oregon   &   W.   Mortg,    Sav.   Bank   v. 

Mortgage  Co.,  429,  525,  527. 
O'Reilly  v.  Cleary,  286. 

V.  Railroad  Co.,  493. 
Ormerod  v.  Dearman,  286. 
Ormes  v.  Dauchey,  405. 
Ormsbee  v.  Howe,  239. 
Ormsby  v.  Rhoades,  17. 
Orne  v.  Cook,  88. 
O'Rorke  v.  Bolingbroke,  252. 
O'Rourk  V.  Percival,  216. 
O'Rourlve  v.  Insurance  Co.,  163,  171, 
177. 

V.  O'Rourke,  343. 
Orr  V.  Meek,  264. 

V.  Mortgage  Co.,  183,  185. 
Ort  V.  Fowler,  198. 
Ortman  v.  Weaver,  31. 
Osage  City  Bank  v.  Jones,  50. 
Osbom  V.  Farwell,  405. 

V.  McCowen,  271. 

V,  Robbins,  242. 
Osborne  v.  Kimball,  80,  92. 


Osborne  v.  Martha's  Vineyard  R.,  382. 

v.  O'Reilly,  128. 

V.  Taylor,  393. 
Osburn  v.  Throckmorton,  544. 
Oscanyan  v.  Arms  Co.,  286,  287,  345. 
Osgood  V.  Bauder,  304. 

V.  Stevenson,   479. 
Osgood's  Adm'rs  v.  Artt,  372. 
O'Shea  v.  Oil  Co.,  257. 
Osier  v.  Hobbs,  109,  138,  139. 
Ostrander  v.  Scott,  132. 
O'Sullivan  v.  Overton,  84. 
Oswald  V.  Frateuburgh,  374. 
Oswego  Starch  Factory  v.  Lendrum, 

239. 
Otis  V.  Cullum,  409. 

V.  Pennsylvania  Co.,  319. 

V.  Spencer,  54. 
Ottawa  Co.  v,  Aplin,  145. 
Ottaway  v.  Lowden,  346. 
Ottumwa  Belle,  The,  219. 
Oughton  V.  Seppings,  537. 
OuUahan  v.  Baldwin,  110. 
Outhwaite  v.  Luntley,  480. 
Outon  V.  Kodes,  282. 
Overman  v.  Kerr,  53. 
Owen  V.  Long,  150,  151,  153. 

V.  Stevens,  68. 

V.  White,  501. 
Owens  V.  I^ewis,  76. 
Oxendale  v.  Wetherell,  453,  551. 


Pabst  Brewing  Co.  v.  Liston,  276,  339 
Pacific  R.  Co.  V.  Seeley,  288. 
Packard  v.  Richardson,  87. 

V.  Van  Schoick,  397. 
Paddleford  v.  Thacher,  133. 
Paddock  v.  Davenport,  35. 

V.  Robinson,  304. 

V.  Stout,  409. 

V.  Strobridge,  224. 
Paducah   Lumber  Co.  v.  Water  Sup- 
ply Co.,  352,  358. 
Paetz  V.  Stoppleman,  227. 
Page  V.  Higgins,  401. 

V.  Krokey,  187. 

V.  Morgan,  102. 

V.  Trufant,  59. 

V.  Wells,  509. 
Paige  T.  Hieronymus,  294. 

V.  Stone.  513. 
Paine  v.  Brown,  452. 


622 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Paine  v.  Loeb,  200. 

V.  Sherwood,  487. 

V.  Tillinghast,  502. 

V.  Upton,  204,  208. 
Painter  v.  Drum,  287. 
Palanctie  v.  Colbui-n,  553. 
Palfrey  v.  Railroad  Co.,  125. 
Palmer  v.  Andrews,  223. 

V.  Bell,  226,  228. 

V.  Britannia  Co.,  425,  431. 

V.  Insiu-ance  Co.,  31,  435. 

V.  Oakley,  188. 

V.  Palmer,  54,  403. 

V.  Railroad  Co.,  429. 

V.  Roath,  394,  514. 

V.  Stebbins,  59. 

V.  Stephens,  89. 

V.  Temple,  461. 

V.  Williams,  506. 

V.  Witcherly,  69. 
Palo  Alto,  The,  37. 
Palo  Pinto  Co.  v.  Gano,  360. 
Pangboru  v.  Westlake,  260. 
Pape  V.  Wright,  342. 
Paradine  v.  Jane,  472,  474. 
Paramour  v.  Yardley,  168. 
Parcell  v.  McComber,  462. 
Parcher  v.  Marathon  Co.,  540. 
Park  V.  Whitney,  30. 
Parker  v.  Cochrane,  522. 

V.  Cousins,  273. 

V.  Crole,  537. 

V.  Davis,  182. 

V.  Dillingham,  69. 

V.  Ibbetson,  430. 

V.  Macomber,  477. 

V.  Moore,  345. 

V.  Pettit,  44f  441. 

V.  Pitts,  269. 

V.  Railway  Co.,  19,  20. 

V.  Russell,  447. 

V.  Smith,  527. 
Parkersburg  v.  Brown,  341. 
Parks  V.  Ingram,  439. 

V.  McKamy,  333. 
Parmelee  v.  Cameron,  252. 

V.  Simpson,  55. 

V.  Wilks,  267. 
Parmentier  v.  Taber,  24L 
Parson  v.  Loucks,  100. 
Parsons  v.  Ely,  252. 

V.  Plill,  163. 

V.  Keys,  IGO. 

V.  Woodward,  362. 


Partridge  v.  Hood,  294. 

V.  Insurance  Co.,  400. 

V.  Messer,  257. 
Pass  V.  Brooks,  95. 

V.  Security  Co.,  273. 
Passano  v.  Acosta,  111,  509. 
Passmore  v.  Telegraph  Co.,  320» 
Patchin  v.  Cromach,  151. 

V.  Swift,  87. 
Paterson  v.  Gandasequi,  522. 
Patmore  v.  Colbum,  420. 
Patnote  v.  Sanders,  441. 
Paton  V,  Stewart,  292. 
Patrick  v.  Bowman,  34. 

V.  Littell,  191. 

V.  Putnam,  477. 

V.  Shaffer,  493. 
Pattee  v.  Greely,  266. 
Patten  v.  Glatz,  227. 

V.  Hicks,  95,  552. 
Patterson  v.  Caldwell,  366. 

V.  Collar,  17,  549. 

V.  Cox,  441. 

V.  Crowther,  396,  398. 

V.  Donner,  292. 

V.  Gibson,  245. 

V.  Kirkland,  224. 

V.  Lippincott,  154,  518. 

V.  Martz,  495. 

V.  Prior,  539. 
Pattison  v.  Hull,  438. 

V.  Shaw,  145. 
Patton  V.  Amey,  42. 

V.  Gilmer,  145. 
Patty  V.  Milne,  437. 
Paul  V.  Hadley,  224. 

V.  Kenosha,  469. 

V.  Meservey,  420. 

V.  Owings,  393. 

V.  Smith,  158. 
Pawlak  V.   Granowski,  94. 
Paxton  V.  Popham,  59. 

V.  Wood,  419. 
Paxton  Cattle  Co.  v.  Bank,  122. 
Payne  v.  Cave,  21,  22,  31. 

V.  Haine,  395. 

V.  Long,  483. 

V.  Mayor  of  Brecon,  333. 

V.  Newcomb.  274. 

V.  Wilson,  123. 
Paynter  v.  Chamberlyn,  107. 

V.  Williams,  15,  140. 
P.  Cox  Shoe  Co.  v.  Adams,  231. 
Peabody  v.  Bement,  393. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


G23 


Peabody  v,  Kendall,  179. 

V.  Norfolk,  312. 

V.  Speyers,  S3,  289. 
Peace  River  Phosphate  Co.  v.  Griflain, 

455,  487. 
Peacock  v.  Cummings,  430. 
Pearce  v.  Brooks,  328. 

V.  Raih-oad  Co.,  193. 

V.  Walker,  437,  438. 

V.  Watts,  44. 

V.  Wilson,  29i. 
Pearl  v.  McDowell,  181. 
Pearsall  v.  Dwight,  343. 
Pease  v.  Hirst,  382. 
Peaslee  v.  Robbins,  180. 
Peavey  v.  Tilton,  54,  55. 
Peck  V.  Brewer,  235. 

V.  Briggs,  331. 

V.  Gary,  187. 

V.  Goff,  09. 

V.  List,  258. 

V.  Vandemark,  86,  88,  114. 
Peckham  v.  Balch,  93. 
Peckham  Iron  Co.  v.  Hai-per,  510. 
Peck  &  Co.  V.  Corrugating  Co.,  446. 
Peden  v.  Railway  Co.,  373,  375. 
Peebles  v.  Stephens,  223. 
Peek  V.  Derry,  233. 

V.  Gurney,  216,  221,  232. 

V.  Peek,  93,  109. 
Peelman  v.  Peelman,  129. 
Peerless   Glass    Co.    v.    Tinware    Co., 

204. 
Pegram  v.  Telegraph  Co.,  204. 
Peigne  v.  Sutcliffe,  176. 
Peirce  v.  Corf,  88. 
Peltz  T.  Eichele,  308,  324. 
Pemberton  v.  Vaughan,  310. 

V.  Williams,  243. 
Pence  v.  Langdon,  236. 
Pendergast  v.  Reed,  227. 
Penfold  V.  Insurance  Co.,  404. 
Penn  v.  Bornman,  261. 

V.  Railroad  Co.,  429. 
Pennell  v.  Transportation  Co.,  399. 
Permiman  v.  Hartshorn,  89. 
Pennington  v.  Gittings,  108. 

V.  Howland,  432. 
Pennock's  Appeal,  258. 
Pennsylvania  Coal   Co.  v.  Sanderson, 

400. 
Pennsylvania  Co.  v.  Dolan,  45,  79. 

V.  Lombardo.  300. 

V.  Wentz,  324. 


Pennsylvania  R.  Co.  v.  Atha,  502. 
Peunville  Natural   Gas   &  Oil   Co.   r. 

Thomas,  416. 
Pennybacker  v.  Laidley,  233. 
Pennypacker  v.  Jones,  412. 
Pennywlt  v.  Poote,  50. 
Penrose  v,  Ourren,  176,  177. 
Pensacola  Gas  Co.  v.  Lotze,  403. 
People  V.  Backus,  406. 

V.  Board,  510. 

V.  Coler,  260. 

V.  Fallon,  277. 

V.  Fisher,  317. 

V.  Gill  son,  260,  280. 

V.  Glann,  461,  464. 

V.  Gray,  362. 

V.  Harrison,  384. 

V.  Insurance  Co.,  475. 

V.  Lee,  407. 

V.  Marx,  260. 

V.  Mercein,  305. 

V.  Milk  Exchange,  313. 

V.  Moores,  151,  152,  158,  548. 

V.  Mullin,  1,51. 

V.  Murphy,  407. 

V.  Refining  Co.,  313. 

V.  St.  Louis,  145, 

V.  Sup'rs,  226. 

V.  Talmage,  145. 

V.  Wood,  538. 
People's  Bank  v.  Bogart,  205,  221,  224. 

V.  Borough  of  Norwaik,  441. 
People's  Bldg.  Ass'n  v.  Klauber,  406. 
People's  Natural  Gas  Co.  v.  Wire  Co., 

407. 
Peoria  &  R.  I.  R.  Co.  v.  Mining  Co., 

288. 
Pepin  V.  Socigte,  268. 
Pepper  v.  Telegraph  Co.,  204. 
Perin  v.  Parker,  534. 
Perine  v.  Dunn,  297. 
Perkins  v.  Cheney,  141. 

V.  Cummings,  323. 

V.  Eaton,  276. 

V.  Gay,  202. 

V.  Hadseil.  89. 

V.  Headley,  132. 

V.  Hoyt,  419. 

V.  Lockwood,  133. 

V.  Savage,  338. 

V.  Westcoat,  41,  68. 
Perot  V.  Cooper,  437,  438. 
Perrin  v.  Lepper,  374. 

V.  Wilson,  157,  159. 


624 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Perrine  v.  Cheeseman,  49,  53,   111. 
Perry  v.  Buckmau,  471. 

V,  Chesley,  496. 

V.  Oobb,  295. 

V.  Iron  Co.,  26,  442. 

V.  Pearson,  180,  236. 

V.  Smith,  500. 
Person  v.  Chase,  163. 
Persons  v.  McKibben,  503. 
Peter  v.  Compton,  77. 
Peters  v.  Davenport,  284. 

V.  Davis,  382. 

V.  E'leming,  156,  159. 

V.  Grim,  337,  338. 

V.  Railroad  Co.,  540. 

V.  Eyiand,  288. 

V.  Westborough,  79. 
Peters  Box  &  Lumber  Co.   v.   Lesh, 

200. 
Peterson  v.  Homan,  519. 

V.  Laik,  170. 

V.  Mayer,  462. 

V.  New  York,  192, 
Petit  V.  Minnesota,  266. 
Petrie  v.  Bury,  382. 

V.  Torrent,  75. 

V.  Williams,  165,  173. 
Pettigrew  v.  Chillis,  230. 
Pettis  V.  Ray,  491. 
Pettlt's  Adm'r  v.  Pettit's  Distributees, 

323. 
Petty  V.  Allen,  491. 

V.  Young,  IS. 
Peugh  V.  Davis,  252. 
Peyson  v.  Conniff,  68. 
Pfaff  V.  Oummings,  69. 

V.  Gk)ldQn,  374. 
Pfeiffer  v.  Campbell,  126. 
Pfenning  v.  Scholer,  274. 
Phelan  v.  Fitzpatrick,  496. 

V.  Gardner,  186. 
Phelps  V.  Hubbard,  440,  459. 

V.  Seely,  425. 

V.  Sheldon,  16. 

V.  Stillings,  85. 

V.  Worcester,  158. 

V.  Zuschlag,  242. 
Philadelphia's  Appeal,  366. 
Philadelphia,  W.  &  B.  R.  Go.  v.  How- 
ard, 451,  453. 

V.  Lehman,  267. 
Philbrook  v.  Belknap,  552. 
Philip  Hiss  Co.  v.  Pitcairn,  431. 
Philipson  v.  Bates,  542. 


Phillips  V.  Adams,  85. 

V.  Barber,  405. 

V.  Bristolli,  102. 

V.  Com'rs,  296. 

V.  Foxall,  217. 

V.  Graves,  190. 

V.  Green,  170. 

V.  Hatch,  147. 

V.  Henry,  244. 

V.  Innes,  268. 

V.  Lloyd,  158. 

V.  Moses,  437. 

V.  Ocmulgee  Mills,  102. 

V.  Preston,  117. 

V.  Pullen,  116,  123,  124. 

V.  Swank,  86. 

V.  Wiginton,  485. 
Phillips   &   Colby  Const.   Oo.  v.   Sey- 
mour, 409,  451,  466. 
Philipson  V.  Bates'  Ex'r,  542. 
Philpot  V.  Bingham,  154. 

V.  Gruninger,  107. 
Phippen  v.  Stickney,  258. 
Phoenix  Ins.  Co.  v.  Badger,  295. 

v.  Rink,  126. 

V.  Slaughter,  406. 

v.  Zlotky,  295. 
Phoenix  Mut.  Life  Ins.  Co.  v.  Raddin, 

215. 
Phoenix  Pub.  Co.  v.  Clothing  Co.,  394. 
Picard  v.  Hire,  191. 
Pickens  v.  Rymer,  53. 
Pickering  v.  Appleby,  100. 

V.  Busk,  502,  515. 

V.  Cease,  278. 

V.  De  Rochemont,  416. 

V.  Gunning,  156. 

V.  Railway  Co.,  322,  325. 
Pickett  V.  Bank,  437. 
Pierce  v.  Brown,  240-242. 

V.  Burnham,  189. 

V.  Fuller,  115. 

V.  Hilton,  494. 

V.  ludseth,  52. 

V.  Jones,  133. 

V.  Knight,  439. 

V.  Paine,  80. 

V.  Pierce,  134,  249,  323. 

V.  Seymour,  496. 

V.  Tidwell,  392,  403. 

V.  Wimberly,  141. 
Piercy  v.  Hedrick,  513. 
Pierpont  v.  Wilson,  499. 
Piersol  v.  Grimes,  482. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


625 


Pierson  v.  Hoocker,  382, 

V,  Morch,  38. 
Pigofs  Case,  324,  482. 
Pike  V,  Brown,  G4. 

V.  McDonald,  493. 
Pilkington  v.  Scott,  112. 
Pillans  V.  Van  Mierop,  110. 
Pillea  V.  Erickson,  270. 
Pillow  V.  Roberts,  52. 
Pillsbury  v.  Locke,  402, 
Pinclies  v.  Lutheran  Church,  431,  432, 

550. 
Pinokney  v.  Dambmann,  409. 
Pindall's  EJx'rs  v.  Bank,  435. 
-Pingry  v.  Washburn,  290. 
Pinkham  v.  Crocker,  515. 

V.  Grear,  226. 

V.  Pinkham,  207, 
Pinnel's  Case,  129,  131. 
Pinney  v.  Jorgenson,  441. 

V.  Railroad  Co.,  408. 
Piper  V.  Foster,  80. 
Pipp  V.  Reynolds,  354. 
Pippen  V.  Insurance  Co.,  165,  176. 
Pireaui  v.  Simon,  (J5. 
Pitcher  v.  Bailey,  535. 

V.  Layrock,  170. 
Pitman  v.  Elder,  141, 
Pittman  v,  Pittman,  445. 
Pittsburg,   C,  C.  &  St,   L.  R.   Co.  v. 
Cox,  319. 

V.  Moore,  319. 
Pittsburg,  C,  C.  &  St,  L.  Ry.  v,  Vol- 

kert,  290. 
Pittsburg,  Ft.  W,  &  C.  R.  Co.  v.  Reno, 

373. 
Pittsburgh  &  L,  R.  Iron  Co.   v.  Iron 

Co.,  207. 
Pixley  V.  Boynton,  279,  331. 

V.  Railroad  Co.,  192. 
Placer  Co.  v.  Astin,  508. 
Plaisted  v.  Palmer,  269, 
Planche  v,  Colbm-n,  449. 
Plank  V.  Jackson,  331. 
Plaster  v,  Rigney,  181. 
Platner  v.  Sherwood,  148. 
Piatt  V.  Brand,  444, 

V.  Colvin,  359. 
Plummer  v.  Bucknam,  553, 

V.  People,  244,  245. 
Poland  V.  Brownell,  228. 
Polhemus  v.  Heiman,  453,  463,  469. 
Polhill  V.  Walter,  232. 
Pollard  V.  Gibhs.  506. 

Clark  Cont.(2d  Ed.)^0 


Pond  V.  Carpenter,  183. 

V.  Sbeean,  93. 

V.  Williams,  438. 
Ponder  v.  Cotton  Co.,  278. 
Pool  V.  Boston,  283. 

V.  Horner,  139. 
Pooley  V.  Harradine,  385. 
Poor  V,  Woodburn,  239. 
Pope  V.  Allis,  462,  463. 

V.  Henry,  505. 

V.  Mfg.  Co.,  408. 

V.  Marshall,  271. 

V.  Porter,  455. 
Poplett  V.  Stockdale,  256, 
Popp  V.  Swanke,  92. 
Poppers  V.  Meager,  412. 
Port  Clinton  R.   Co.  v.  Railroad  Co.. 

490. 
Porter  v.  Day,  277,  521. 

V,  Dunlap,  367, 

V,  Jefferies,  207,  275,  544. 

V.  Rose,  117,  459. 

V.  Water  Co.,  489. 
Porterfield  v.  Butler,  141,  188. 
Portner  v.  Kirschner,  294. 
Portsmouth   Brewing   Co.    v.    Mudge, 

337. 
Posey  V.  Scales,  459, 
Post  V.  Bank,  131,  241. 

V.  Kearney,  373, 
Pothlll  V.  Walker,  518. 
Potsdamer  v.  Kruse,  453. 
Potter  V.  Arnold,  74. 

V,  Douglass,  132. 

V.  Earnest,  471, 

V.  Hopkins,  393. 

V.  Jacobs,  94. 

V,  McCoy,  380, 

V.  Mining  Co.,  297,  298,  300. 

V.  Morland,  396. 

V.  Peters,  88. 

V.  Sanders,  25. 

V.  Tuttle,  409. 

V.  Van  Vranken,  378. 
Potts  V.  Bell,  290. 

V.  Plaisted,  442. 

V.  Polk  Co.,  123. 

V,  Whitehead,  27,  30, 
Poulton  V,  Lattimore,  464, 
Poussard  v.  Spiers,  466. 
Powell  V.  Blow,  423, 

V.  Bradlee,  22L 

V.  Duff.  56. 

V.  Flanary,  294. 


626 


Powell  V.  Rankin,  71. 

V.  Rees,  537. 
Powerg  V.  Bumcratz,  24. 

V.  Clarke,  407. 

V.  Fowler,  226. 

V.  Skinner,  285. 
Powers  Dry  Goods  Co.  v.  Harlin,  £61 
Pownal  V.  Ferrand,  534. 
Prater  v.  Miller,  124. 
Pratt  V.  Beaupre,  519. 

V.  Bowman,  204. 

V.  Burhaus,  233. 

V.  Humphrey,  66. 

V.  Miller,  99. 

V.  Trustees  of  Baptist  See.,  37. 
Pray  v.  Burbank,  261,  265. 

V.  Mitchell,  100. 
Preachers'  Aid  Soc.  v.  England,  354. 
Prentiss  y.  Ledyard,  430. 
Presbery  v.  Fisher,  324. 
President,  etc.,  of  Atlas  Bank  v.  Pres- 
ident, 341. 
President,  etc.,  of  Bank  of  Portland  v. 

Brown,  439. 
President,  etc.,  of  Delaware  &  H.  Ca- 
nal Co.  V.  Coal  Co.,  295. 
President,  etc.,  of  Greenfield  Bank  v. 

Crafts,  504. 
President,    etc.,    of    Michigan    State 

Bank  v.  Hammond,  145. 
President,    etc.,   of   Niagara   Bank   v. 

Rosevelt,  439. 
President,  etc.,  of  Springfield  Bank  v. 

Merrick,  261. 
Pressed  Steel  Car  Co.  v.  Railroad  Co., 
412. 

V.  Railway  Co.,  405. 
Preston  v.  Bacon,  283. 

V.  Boston,  540. 

V.  Grant,  492,  493. 
Price  V.  Bank,  125. 

V.  Campbell,  270,  274. 

T.  Caperton,  283. 

V.  Easton,  352. 

V.  Furman,  165,  172,  173,  175. 

V.  Hay,  149. 

V.  Jennings,  158,  178. 

V.  Lien,  92. 

V.  McCauley,  216. 

V.  Mitchell,  126. 

V.  Moulton,  58,  478. 

y.  Railroad  Co.,  383. 

y.  Sanders,  158. 

y.  Seaman,  303. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Price  V.  Seydel,  501. 
Prichard  v.  Sharp,  242. 
Prickett  v.  Badger,  485. 
Priest  V.  Cone,  190. 

V.  White,  232. 
Priester  v.  Priester,  108. 
Priestlie  v.  Fernie,  522. 
Priestly  v.  Fernie,  523. 
Prime  v.  Koehler,  71. 
Primrose  v.  Telegraph  Co.,  320. 
Printing  &  Numerical  Registering  Co. 

V.  Sampson,  281,  316. 
Pritchard  v.  Brown,  58. 
y.  Norton,  97. 
V.  Pritchard,  18. 
Proctor  V.  Hartigan,  395. 

V.  Sears,  167. 
Pixjprietors    of    the    Oanal    Bridge   y. 

Gordon,  192. 
Proprietors  of  Cardigan  y.  Page,  282. 
Proprietors  of  Charles  River  Bridge  v. 

Proprietors  of  Warren  Bridge,  406. 
Proprietors  of   Mill-Dam   Foundry   v. 

Hovey,  451,  452. 
Prosser  v.  Edmonds,  299. 

V.  Evans,  381. 
Protector  Loan  Co.  v.  Grice,  413, 
Prout  V.  Fire  Dist,  123. 

V.  Wiley,  166. 
Prouty  V.  Edgar,  152. 
Providence  Coal  Co.  v.  Coxe,  455. 
Providence  Gas-Burner  Co.  v.  Barney, 

526. 
Providence  Life  &  Trust  Co.  y.  Fiss, 

375. 
Prowse  v.  Worthinge,  488. 
Prutsman  v.  Baker,  55,  56. 
Pryor  v.  Foster,  235. 
Puckett  v.  Alexander,  261,  264,  346. 
Puffer  v.  Smith,  198. 


Pugh  v.  Powell,  538. 

V.  Sti-ingfleld,  382. 
Pugsley  V.  Murray,  302. 
Pulliam  V.  Withers,  481. 
Pulsifer  y.  Shepard,  442. 
Purcell  V.  Miner,  94. 
Purdy  y.  Railroad  Co.,  319. 
Purner  v.  Piercy,  76. 
Pursley  v.  Hays,  169. 

V.  Morrison,  502,  513. 
Purves'  Estate,  In  re,  43. 
Purvines  v.  Harrison,  40L 
Pust  V.  Dowie,  46(>.  467. 
Putnam  v.  Field,  355. 


CASES   CITED. 
ITho  figures  refer  to  pages.] 


627 


Putnam  v.  Grace,  28. 

V,  Insurance  Co.,  63. 

V.  Sullivan,  198. 

V.  Tennyson,  141. 

v.  Woodbury,  129. 
Pyke's  Case,  331. 
Pyle  V.  Cravens,  154. 
Pym  V.  Campbell,  392. 
Pyne  v.  Wood,  156,  170. 

Q 

Quarles  v.  State,  267. 

Quick  V.  Wheeler,  31. 

Quigley  v.  De  Haas,  393,  451,  461. 

Quimby  v.  Cook,  272. 

V.  Shearer,  197. 
Quinn  v.  Champagne,  86. 

V.  Roath,  409. 

V.  Stout,  428. 
Quu-k  V.  Muller,  292. 

V.  Thomas,  331. 

R 

Raabe  v,  Squier,  72. 
Rabberman  v.  Wiskamp,  70. 
Raby  v.  Reeves,  375. 
Radley  v.  Kenedy,  176. 
Rae  V.  Hulbert,  531,  533. 
Rafferty  v.  Lougee,  88. 
Raffles  V.  Wichelhaus,  202. 
Rafolovitz  V.  Tobacco  Co.,  119. 
Ragan  v.  Chenault,  506. 
Rahter  v.  Bank,  261. 
Railroad  Co.  v.  Trimble,  407. 
Railsback  v.  Walke,  81. 
Rains  v.  Wheeler,  303. 
Raisin  v.  Clark,  399. 
Rakestraw  v.  Lanier,  310,  311. 
Raleigh  &  G.  R.  Co.  v.  Reid,  406. 
Ralston  v.  Boady,  328. 

V.  Wood,  435. 
Ramloll  V.  Soojumnull,  276. 
Ramsay  v.  Warner,  438. 
Ramsdell  v.  Edgarton,  257. 
Ramsey  v.  Morrison,  272. 
Ramsgate  Hotel  Co.  v.  Monteflore,  31, 

36. 
Rand  v.  Mather,  322. 

V.  Webber,  545. 
Randall  v.  Morgan,  40,  41. 

V.  Protective  Union,  344. 

T.  Randall,  303. 


Randall  v.  Rich,  536. 

V.  Smith,  2G4. 

V.  Svpeet,  158. 

V.  Tuell,  261,  264. 
Randell  v.  Trimen,  518. 
Randolph  v.  Halden,  400. 
Randolph  Iron  Co.  v.  Elliott,  199. 
Randolph's  Ex'r  v.  Ouidnick  Co.,  116. 
Rankin  v.  West,  501. 
Rann  v.  Hughes,  49,  110,  111. 
Raimels  v.  Gerner,  182. 
Ransdel  v.  Moore,  356. 
Raper  v.  Birkback,  482. 
Rapid  Transit  Land  Co.  v.  Sanford, 

169. 
Rapley  v.  Klugh,  395. 
Rappanier  v.  Bannon,  122. 
Rappleye  v.  Seeder  Co.,  360,  364. 
Rathbon  v.  Budlong,  512. 
Ratliff  V.  Vandikes,  235. 
Rau  V.  Boyle,  286. 
Raub  V.  Smith,  75. 
Ravilins  v.  Wickham,  235. 
Rawson  v.  Davidson,  480. 
Rawstorne  v.  Gandell,  382. 
Ray  v.  Haines,  164,  175. 

V.  Mackin,  258. 

v.  Thompson,  428. 

V.  Tubbs,  152,  177. 
Raymond  v.  Insurance  Co.,  295. 

V.  Leavitt,  315,  331. 
Rayner  v.  Wilson,  216. 
Raynor  v.  Drew,  77,  393. 

V.  Grote,  517. 
Read  v.  Anderson,  343. 

V.  Legard,  181. 
Reading  v.  Price,  494. 
Ready  v.  Pinkliam,  172. 
Real  Estate  Sav.  Inst.  v.  Linder,  544. 
Reando  v.  Misplay,  181. 
Rebman  v.  Water  Co.,  552. 
Rector,  etc.,  of  St  Mark's  Church  v. 

Teed,  121. 
Redding  v.  Lamb,  470. 

V.  Wright,  228. 
Redfield  v.  Davis,  509. 
Redgrave  v.  Hurd,  218,  228,  233,  236. 
Redlich  v.  Doll,  483. 
Reed  v.  Batchelder,  141. 

V.  Boshears,  167. 

V.  Breeden,  409. 

V.  Brewer,  328. 

T.  Evans,  87. 

V.  Insurance  Co.,  295,  395,  404. 


628 


CASES   CITED. 
£Th8  figures  refer  to  pages.] 


Reed  v.  Lane,  153. 

V.  Petei-sou,  217,  250. 

V.  Warehouse  Co.,  290. 
Rees  V.  Berrington,  385. 

V.  Logsdon,  58,  409. 
Reese  v.  Medlock,  506. 
Reese  River  Min.  Co.  v.  Smith,  229, 

232. 
Reeve  v.  Ass'n,  271. 

V.  Dennett,  232. 
Reeves  v.  Brayton,  58. 

V.  Corning,  224. 
Reeves'  Estate  v.  Moore,  17. 
Reg.  v.  Rowlands,  317. 
Regan  v.  Baldwin,  540,  541. 
llegents  of  University  of  Michigan  v. 

Society,  192. 
Reger  v.  O'Neal,  272. 
Regester  v.  Dodge,  424. 
Reichenbach  v.  Sage,  473. 
Reichwald  v.  Hotel  Co.,  504. 
Reid  V.  Hibbard,  131. 
Reif  V.  Paige,  15.  39. 
Reilly  v.  Chouquette,  405. 
Reindl  v.  Heath,  451. 
Reinsliopf  v.  Rogge,  186,  187. 
Reitz  V.  Martin,  513. 
Relief  Fire  Ins.  Co.  v.  Shaw,  63. 
Renard  v.  Sampson,  420. 
Rendell  v.  Harriman,  520. 
Renner  v.  Bank,  398. 
Rentch  v.  Long,  100. 
Repetti  v.  Maisak,  86. 
Reticker  v.  Katzenstein,  222. 
Reusens  v.  Staples,  52. 
Reuss  V.  Picksley,  84,  87,  89,  105. 
Reybold  v.  Voorhees,  455. 
Reynell  v.  Sprye,  340. 
lieynolds  v.  Hassam,  393. 

V.  McCurry,  773. 

V.  Nugent,  128. 

V.  Palmer,  467. 

V.  Reynolds,  130. 

V.  Robinson,  392. 

V.  Stevenson,  266. 

V,  Waller's  Heirs,  186. 
Rb.eel  v.  Hicks,  542,  543. 
Rliine  v.  Ellen,  390. 
Rlioads  V.  Jones,  58. 
Rboda  V.  Annis,  524. 
Rhodes  v.  Bates,  250. 

V.  Neal,  286. 

V.  Rhodes,  181,  547. 


Rhodes  v.  Sparks,  293. 

V.  Wilson,  395. 
Rhone  v.  Powell,  519. 
Rice  V.  Boyer,  164,  165.  17.'i-177. 

V.  Butler,  175. 

V.  Caudle,  488. 

V.  D'Arville,  490. 

V.  Gist,  276. 

V.  Goddard,  471. 

V.  Grange,  471. 

V.  Insurance  Co.,  219. 

V.  Kahn,  440. 

V.  Manley,  350. 

V.  Mfg.  Co.,  207. 

V.  Mortgage  Co.,  130. 

V.  Shute,  380,  381. 

V.  Williams,  301. 

V.  Wood,  302,  509. 
Richard  v.  Griggs,  367. 
Richards  v.  Allen,  92. 

v.  Day,  391. 

V.  Heather,  380,  381. 

V.  Seating  Co.,  309. 

V.  Shaw,  16,  453. 

V.  Skiff,  389. 
Richardson  v.  Aiken.  494. 

V.  Buhl,  313. 

V.  Campbell,  346. 

V.  Crandall,  340. 

V.  Dorman,  264. 

V.  Draper,  381. 

V.  Duncan,  242. 

V.  Hardwick,  30. 

V.  Laboratory,  442. 

V.  L*>uhard,  36. 

V.  Machine  Works,  526. 

V.  Mining  Co.,  53. 

V.  Pate,  166. 

V.  Peacock,  490. 

V.  People,  406. 

V.  Pierce,  79. 

V.  Richardson,  72. 

V.  Rountree,  19. 

V.  Rowlind,  297. 

V.  Scotts  Bluff  County,  285. 

V.  Strong,  181. 

V.  Williamson,  518. 
Richelieu   Hotel   Co.   v.   Encampment 

Co..  119. 
Richison  v.  Mead,  433. 
Richmond  v.  Moore,  266. 

v.  Morford,  53,  56. 

V.  Robinson,  409. 


CASES  CITED. 
[The  figures  refer  to  pages. J 


Q29 


KichmoLd  Ice  Co.  v.  Ice  Co.,  405. 
Kicbmond  Uuion  Pass.  li.  v.  Railroad 

Co.,  77. 
Richmond  &  D.  R.  Co.  v.  Jones,  319. 
Richter  v.  Stock  Co.,  471. 
Ricli  V.  Kelly,  435. 
Ricketts  v.  Harvey,  293,  323. 
Riddle  v.  Keller,  269. 
Rideal  v.  Railway  Co.,  203. 
Rider  v.  Miller,  251. 
Ridgely  v.  Craudall,  151. 
Ridgeway  v.  Herbert,  167,  170,  173. 
Ridgway  v.  Wharton,  29,  42,  43. 
Ridley  v.  McNairy,  95. 
Riegel  v.  Insurance  Co.,  201. 
Riegelman  v,  Focht,  69. 
Rigby  V.  Connol,  317. 
Rigdon  V.  Walcott,  237. 
Riggan  v.  Green,  1S3. 
Riggs  V.  Bullingham.  138. 

V.  Tract  Soc,  180. 
Righter  v.  Warehouse  Co.,  272. 
Rigs  V.  Cage,  528. 
Riley  v.  Carter,  1S2. 

V,  Jordan,  328. 

V.  Kershaw,  132. 

V.  Mallory,  164,  174. 

V.  Taber,  368. 

V.  Telegraph  Co.,  320. 

V.  Williams,  553. 
Rimer  v.  Dugan,  216. 
Rindskoff  v,  Barrett,  396,  403. 
Ring  V.  Jamison,  167. 
Ringer  v.  Holtzclaw,  85. 
Rio  Grande,  The,  v.  Otis,  50. 
Riordan  v.  Church,  358. 
Rioux  V.  Brick  Co.,  408,  410,  466. 
Ripley  v.  Case,  545. 

V.  Crooker,  380. 

V.  Insurance  Co.,  215. 
Rippy  V.  Grant,  251. 
Risley  v.  Bank,  366. 
Rison  V.  Newberry,  221. 
Ritchie  v.  Atkinson,  453,  454. 

V.  Smith,  202. 
Ritter  v.  Insurance  Co.,  300. 
Rivers  v.  A.  &  C.  Wright  &  Co.,  366. 

V.  Gregg,  155,  157,  159. 
River  Steamer  Co.,  In  re,  496. 
Rives  V.  Dudley,  442. 
Roach  V.  Quick,  151. 
Robbins  v.  Ayres,  58,  356,  358. 

V.  Barton,  227. 

V.  Eaton,  168. 


Robbins  v.  Kimball,  75. 

Robert  v.  Barnum,  133. 

Roberts  v.  Bonaparte,  394,  395,  404. 

V.  Button,  518. 

V.  Carter,  369. 

V.  Cobb,  114. 

V.  Donovan,  217,  223. 

V.  Levy,  264. 

v.  Rockbottom  Co.,  78. 

v.  Rum  ley,  505. 

V.  Security  Co.,  32,  54. 

V.  Smith,  44. 

V.  Tennell,  81. 

V.  White,  441. 
Robertson  v.  Frank  Bros.  Co.,  540. 

V.  Hunter,  68. 

V.  Parks,  225. 

V.  Robinson,  282. 

V.  Tapley,  28. 
Robinson  v.  Bank,  520. 

V.  Barrows,  346. 

V.  Batchelder,  426. 

V.  Bland,  344,  345. 

V    Cook,  441, 

V.  Coulter,  153. 

V.  Davison,  477,  550. 

V.  Doolittle,  438. 

V.  Fairbanks,  428. 

V.  Gould,  244. 

V.  Green,  324. 

V.  Harman,  486. 

V.  Jewett,  127. 

V.  Kalbfleish,  291. 

V.  Marshall,  368. 

V.  Read,  436,  437. 

V.  Templar  Lodge.  295. 

V.  Weeks,  150,  172. 

v.  Weller,  30. 
Robson  V.  Bohn,  451,  455,  456. 

v.  Drummond,  360,  364. 
Roby  V.  Carter,  291. 

V.  Cossitt,  503. 
Rochester  v.  Levering,  510. 
Rochester  Lantern   Co.   v.  Press  Oa., 

361.  487. 
Rockafellow  v.  Newcomb,  114,  250. 
Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Shu- 
nick,  197. 
Rockford  Watch  Co.  v.  Manifold,  510. 
Rodecker  v.  Littauer,  27L 
Rodemeier  v.  Brown,  54. 
Rodgers  v,  Jones,  103. 

V.  Levy,  494. 

V.  Torrent,  365. 


G30 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Rodliff  V.  Dolllnger,  200. 

Rodwell  V.  Phillips,  76. 

Roebling's  Sons'  Co.  v.  Fence  Co.,  446. 

Roehl  V.  Haumesser,  88,  90,  500. 

Roelim  V.  Horst,  444. 

Roesner  v.  Hermann,  319. 

Rogers  v.  Allen,  399. 

V.  Blackwell,  181,  186. 

V.  Bollinger,  58. 

V.  Burr,  408. 

V.  Carey,  54. 

V.  Hardware  Co.,  71. 

V.  Higgins,  247. 

V.  March,  517. 

V.  Marriott,  278,  342. 

V.  Pattie,  204. 

V.  Phillips,  190. 

V.  Rogers,  421. 

V.  Sample,  272. 

V.  Saunders,  495. 

V.  Stone  Co.,  353. 

V.  Van  Nortwick,  495. 

V.  Ward,  190,  191. 

V.  Wolfe,  93. 
Rohan  v.  Hanson,  437. 
Rohman  v.  Gaiser,  356. 
Rohrof  V.  Schulte,  228. 
Roll  V.  Raguet,  293. 
Roller  V.  Ott,  307. 
Rollins  V.  Marsh,  128,  419-421. 
Rollins  Inv.  Co.  v.  George,  4S9. 
Roman  v.  Mali,  337,  340. 
Rommel  v.  Wingate,  442. 
Rood  V.  Jones,  124. 
Root  V.  Merriam,  335. 
Roper  V.  Johnson,  444. 
Roquemore  v.  Alloway,  330. 
Rorabacher  v.  Lee,  383. 
Roscorla  v.  Thomas,  138. 
Rose  V.  Daniels,  130. 

V.  Duncan,  442. 

V.  Mitchell,  330. 

V.  Munford,  273,  274. 

V.  Truax,  285. 
Rosema  v.  Porter,  492. 
Roseman  v.  Conovan,  222. 
Rosenbaum  v.  Credit  System  Co.,  207, 

323-325. 
Rosenberg  v.  Block,  538. 
Rosenblatt  v.  Townsley,  269. 
Rosenfeld  v.  Swenson,  16. 
Rosenstock  v.  Tormey,  400. 
Ross  V.  Oonway,  249. 

V.  Doland,  198. 


Ross  V.  Hard,  141. 

V.  Miner,  222, 

V.  Parks,  120. 

V.  Welch,  76. 
Rosser  v.  Darden,  522, 
Rossiter  v.  Miller,  43. 

V,  Rossiter,  513,  514. 
Rossman  v,  Townsend,  349. 
Rotheram  Alum  Co.,  In  re,  353. 
Rothschild  v.  Mack,  230. 
Rottman  v,  Pohlmann,  68. 
Roughton  V,  RawUngs,  75, 
Rountree  v.  Smith,  342. 
Rousillon  V.  Rousillon,  307,  309. 
Routledge  v.  Grant,  33. 
Rovegno  v,  Defferari,  204. 
Row  V,  Dawson,  367. 
Rowe  V.  Barnes,  125. 

V.  Moon,  356. 

V.  Rand,  527,  529. 

V.  Ware,  500. 
Rowell  V.  Oleson,  519. 
Rowland  v.  Bull,  274. 
Rowley  v.  Bigelow,  234,  238. 

V.  Jewett,  480. 

V.  Stoddard,  381. 
Royal  Ins.  Co.  v.  Beatty,  16. 
Roys  V.  Johnson,  326. 
Royston  v.  Miller,  197. 
Rucker  v.  Harrington,  426. 
Ruckman  v.  Bergholz,  260,  261. 

V.  Bryan,  330. 

V.  Ruckman,  54, 
Rudasill  v.  Falls,  507. 
Rudesill    v.   Jefferson    County   Court, 

481, 
Rudisill  V.  Cross,  74. 
Rue  V.  Meirs,  125. 
Ruff  V.  Jarrett,  229,  233,  469. 
Ruffner  v.  Hewitt,  508. 
Rugan  V.  Sabin,  236. 
Rugg  V.  Minelt,  476. 

V,  Moore,  455,  456. 
Ruiz  V,  Norton,  522. 
Rumbough  v.  Improvement  Co.,  394. 
Runde  v.  Runde,  69. 

V.  Spencer,  166. 
Runge  V.  Brown,  232. 
Runt  V.  Herring,  318. 
Runyan  v.  Latham,  437. 
Runyon  v.  Snell,  501. 
Kupley  V.  Daggett,  204. 
Ruppe  V.  Edwards,  514. 

V.  Peterson,  72. 


Kush  V.  Rush,  2G0. 

V.  Wick,  154. 
Russell  V.  Allerton,  405. 

V.  Bell,  549. 

V.  Kirkbride,  309. 

V.  Mfg.  Co.,  28. 

V.  Murdock,  269. 

V.  Place,  493. 

V.  Post,  330. 

V.  Russell,  250. 

V.  Stewart,  40. 

V.  Wriglit,  125. 

V.  Youug,  407. 
Russ  Lumber  &  Mill  Oo.  v.  Water  Co., 

225,  470. 
Rust  V.  Gott,  276. 
Rutherford  v.  Mclvor,  543. 
Rj-all  V.  Rowles,  367. 
Ryan  v.  Asbton,  249. 

V.  School  Dist,  264. 

V.  U.  S.,  86,  87. 
Ryder,  Ex  parte,  159. 

In  re,  548. 

V.  Wombwell,  155,  156,  159. 
Ryer  v.  Stockwell,  38,  39. 


Sable  V.  Maloney,  208. 

Safford  v.  Grout,  233. 
V.  McDonough,  102. 

Sage  V.  WDcox,  64,  87. 

Sails  V.  Miller,  514. 

St.  Andrew  v.  Mfg.  Co.,  369. 

St.  Joseph  &  D.  C.  R.  Co.  y.  Ryan,  288. 

St.  Joseph  &  G.  I.  R.  Co.  v.  Palmer, 
319. 

St.  Leger's  Appeal,  249. 

St.  Louis  Agr.  &  Mech.  Ass'n  v.  De- 
lano, 267. 

St.  Louis  Fair  Ass'n  v.  Carmody,  328. 

St  Louis,  Ft.  S.  &  AV.  R.  Oo.  v.  Davis, 
130. 

St,  Louis,  I.  M.  &  S.  R.  Co.  v.  O'Baugh, 
375. 
V.  Ruddell,  55. 

St.  Louis,  J.  &  C.  R.  Co.  V.  Mathers, 
288. 

St.  Louis,  K.  &  N.  W,  R.  Co.  v.  Clark, 
96. 

St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Railroad 
Co.,  337. 

St.  Paul  &  D.  R.  Co.  V.  Blackmar,  407. 

Sale  V.  Lambert,  84. 


CASES   CITED.  631 

[The  figures  refer  to  pages.] 

Salem   iadia-Hubber   Co.   v.   Adams, 

228. 
Salinas  v.  Bennett,  162. 

V.  Stillman,  286. 
Salisbury  v.  Brisbane,  476. 
Salm  V.  Israel,  227. 
Salmon  v.  Boykin,  464. 
Salmon  Falls  Mfg.  Co.  v.  Goddard,  S4, 

89. 
Saltmarsh  v.  Smith,  528. 
Sampson  v.  Barnard,  481. 

V.  Gazzan,  396. 

V.  Shaw,  315. 

V.  Townsend,  329. 
Sams  V.  Stockton,  156. 
Samuel  v.  Marshall,  180. 
Samuels  v.  Oliver,  315,  342. 
Sanborn  v.  Flagler,  85,  89,  105. 

V.  Insurance  Co.,  63. 

V.  Little,  369. 

V.  Sanborn,  88. 
Sandage  v.  Mfg.  Co.,  261. 
Sandeen  v.  Railroad  Co.,  549. 
Sanders  v.  Bank,  131,  191. 

V.  Bennett,  166. 

V.  Carter,  107. 

V.  Fruit  Co.,  29,  43. 

V.  Johnson,  267. 

V.  Smith,  122. 
Sanderson  v.  Piper,  396. 
Sandford  v.  Handy,  227,  514,  515. 
Sanford  v.  Bank,  412. 
Sands  v.  Sands,  248. 
Sandwich  Mfg.  Co.  v.  Earl,  493. 
Sanford  v.  Abrams,  132. 

V.  Howard,  31. 

v.  Kane,  274. 

V.  Sornborger,  243. 
San  Francisco  Bridge  Co.  v.  Improve- 
ment Co.,  468. 
Santa  Clara  Valley  Mill  &  Lumber  Co. 

v.  Hayes,  313,  322. 
Sapsford  v,  Fletcher,  534. 
Saratoga  County  Bank  v.  King,  323. 
Sarbecker  v.  State,  23,  103. 
Sard  v.  Rhodes,  435. 
Sari  V.  Bourdillon,  105. 
Sarles  v.  Sharlow,  77. 
Sarwell  v.  Sowles,  96. 
Sasportas  v.  Jennings,  243. 
Sattler  v.  Hallcok,  403. 
Sault  Ste.  M.,  L.  &  I.  Co.  v.  Simons,  33. 
Saunders  v.  Blytte,  55. 

V.  Clark,  405. 


632 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Saunders  v.  McClintock,  225,  233. 

V.  Utt's  Adiii'r,  156. 

V.  Wbitcomb,  131. 
Saunderson  v.  Marr,  154. 
Savage  v.  Davis,  501. 

V.  Gregg,  368. 

V.  Liclilyter,  162. 

V.  Savage,  483. 
Savannah  Ice  Delivery  Co.  v.  Transit 

Co.,  410. 
Saveland  v.  Green,  204. 
Saville  v.  Chalmers,  58. 
Saville,  Somes  &  Co.  v.  Welch.   505, 

538. 
Savings  Bank  v.  Bank,  345. 

V.  Mortgage  Co.,  429. 
Sawtelle  v.  Drew,  398. 
Sawyer  v.  Brossart,  29. 

v.  Cutting,  501. 

V.  Lufkin,  181. 

V.  Mayhew,  277,  509. 

v.  Prickett,  224. 

V.  Tappan,  437. 

V.  Ware,  98. 
Sax  V.  Railway  Co.,  79. 
Saxon  V   Wood,  300. 
Sayer  v.  Wagstaff,  436,  437. 
Sayles  v.  Christie,  248. 

V.  Smith,  266. 
Sayre  v.  King,  436. 

V    Nichols,  511. 
Sayward  v.  Dexter,  Horton  &  Co.,  356. 

V.  Gardner,  85. 
Scales  V.  State,  266. 
Scanlan  v.  Keith,  520. 
Scanlon  v.  Cobb,  183. 

V.  Warren,  279,  331. 
Scarborough  v.  Watkins,  249. 
Scarlett  v.  Stein,  410. 
Sceva  V.  True,  181,  530,  547. 
Schack  V.  Anthony,  521. 
Schaefer  v.  Henkel,  521. 
Schaller  v.  Railway  Co.,  20. 
Schamp  v.  Schenck,  297. 
Schaper  v.  Schaper,  198. 
Schaps  v.  Lehner,  183. 
Schenectady  Stove  Co.  v.  Holbrook,  31, 

42. 
Schepflin  v.  Dessar,  522. 
Scliermerhom   v.    Vanderheyden,   356. 
Scheuer  v.  Goetter,  238. 
Schiffer  v.  Dietz,  236. 

v.  Feagin,  516. 
Schilling  v.  Black,  384. 


Schilling  v.  Mullen,  366,  368. 
Schlesinger  v.  Stratton,  428. 
Schliess  v.  Grand  Rapids,  433. 
Schlitz  V.  Meyer,  492. 
Schloss  V.  Hewlett,  283,  284. 
Schmaling   v.    Thomlinsou,    349,    351, 

549. 
Schmalz  v.  Avery,  521. 
Schmidt  v.  Thomas,  102,  269. 
Schmueckle  v.  Waters,  275. 
Schneider  v.  Norris,  89. 

V.  Staihr,  164. 
Schnell  v.  Nell,  115. 
Schoener  v.  Lissauer,  242. 
Schoenfeld  v.  Brown,  68. 
Schofield  V.  Walker,  247. 
Scholey  v.  Halsey,  537. 

V.  Mumford,  244. 
School  Directors  v.  Trefethren,  35. 
School  Dist.  No.  1  v.  Dauchy,  473. 
School   Dist.   of  Beatrice  v.  Thomas, 

349,  356. 
Schooley  v.  Remain,  414. 
School  Trustees  v.  Bennett,  473. 
Schoonover  v.  Vachon,  96. 
Schorestene  v.  Iselin,  38. 
Schroeder  v.  Fink,  124,  125. 

v.  Loeber,  95. 
Schubart  v.  Coke  Co.,  233. 
Schuff  V.  Ransom,  185. 
Schuler  v.  Myton,  126. 
Schultz  V.  Catlin,  243,  245. 

V.  Culbertson,  293. 

V.  Noble,  65. 

V.  Waldons,  75. 
Schulze-Berge  v.  The  Guildhall,  319. 
Schumaker  v.  Mather,  228. 
Schurmeier  v.  Johnson,  494. 
Schuylkill  Co.  v.  Copley,  197. 
Schwab  V.  Rigby,  269. 
Schwalm  v.  Mclntyre,  481. 
Schwailz  V.  Schwartz.  241,  245. 
Schwarzbach  v.  Protective  Union,  210, 

215. 
Schweider  v.  Lang,  131,  492. 
Schwinger  v.  Hickok,  545. 
Scioto  Fire  Brick  Co.  v.  Pond,  201. 
Scobey  v.  Ross,  298. 
Scofield  V.  Railroad  Co.,  289. 
Scoggin  V.  Slater,  75. 
Scotson  V.  Pegg,  129. 
Scott  V.  Avery,  295,  296. 

V.  Brown,  257,  337. 

V.  Buchanan,  166,  170. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


633 


Scott  V.  Davis,  28. 

V.  Fields,  409. 

V.  Glenn,  89. 

V.  Littledale,  205. 

V.  McMillan,  376. 

V.  Miller,  537. 

V.  Rogers,  509. 

V.  Sadler,  3G9. 

V.  Scott,  luy. 

V.  Stetler,  375. 

V.  White,  71. 

V.  Whitney,  398. 
Scottish-American  Mortg.  Co.  v.  Da- 
vis, 26. 
Scribner  v.  Hollis,  399. 
Scrimshire  v.  Scrimshire,  344. 
Scroggin  v.  W^ood,  225,  230,  390. 
Scudder  v.  Carter,  70,  218. 
Scully  V.  Kirkpatrick,  476,  550. 
Sea  V.  Carpenter,  508. 
Seagraves  v.  Alton,  192. 
Seaman  v.  Colley,  293. 
Seamans  v.  Temple  Co..  345. 
Searcy  v.  Hunter,  163,  175. 
Searle  v.  Galbraith,  ISO. 

V.  Hill,  95. 
Sears  v.  Brink,  87. 

V.  Hicklin,  496. 

V.  Railroad  Co.,  38. 

V.  Shafer,  250. 

V.  Starbird,  385,  534. 
Seaver  v.  Phelps,  183. 
Seavey  v.  Shurick,  400. 
Sebastian  May  Co.  v.  Codd,  486. 
Seccomb  v.  Insurance  Co.,  400. 
Second  Nat.  Bank  v.  Grand  Lodge,  354, 
355. 

V.  Steel  Co.,  520. 
Secor  V.  Clark,  244. 
Seculovich  v.  Morton,  495. 
Seddon  v.  Rosenbaum,  80. 
Sedgwick  v.  Stanton,  287. 
Seeberger  v.  McCormick,  518. 
Seebold  v.  Tatlie,  480. 
Seebolt  v.  Tatlie,  479. 
Seeger  v.  Duthie,  211. 
Seeley  v.  Traction  Co.,  203,  205. 

V.  Welles,  432. 
Seeman  v.  Biemann,  412. 
Seery  v.  Socks,  512. 
Segar  v.  Edwards,  510. 
Seiber  v.  Price,  242. 
Seidenbender  v.  Charles'  Adm'rs,  261, 
333. 


Seigman  v.  Hoffacker,  356,  358. 
Seipel  V.  Insurance  Co.,  553. 

V.  Trust  Co.,  449. 
Selden  v.  Myers,  251. 
Semmes   v.    Insurance   Co.,    147,   148, 
474. 

V.  Worthington,  94. 
Semple  v.  Pink,  123. 
Sennett  v.  Shehan,  552. 
Sentance  v.  Pool,  18'i. 
Senter  v.  Monroe,  518. 

V.  Williams,  437. 
Sergeant  v.  Dwyer,  45. 

V.  Stryker,  538. 
Seward  v.  Mitchell,  117. 
Sewell  V.  Sewell,  178, 
Sext  V,  Geise,  72. 
Seybold  v.  Morgan,  499. 
Seymour  v.  Armstrong,  28,  38,  397. 

V.  Bridges,  343. 

V.  Marlboro,  139. 

V.  Marvin,  438. 

V.  Minturn,  380,  419. 

V.  Society,  194. 

V.  Van  Slyck,  437. 
Shackell  v.  Rosier,  259. 
Shackelton  v.  Sebree,  186. 
Shadburne  v.  Daly,  122. 
Shade  v.  Creviston,  367,  369. 
Shadwell  v.  Shadwell,  114,  129. 
Shady   Hill  Nursery  Co.   v.   Waterer, 

128. 
Shaeffer  v.  Blair,  508. 
Shafer  v.  Senseman,  303. 
Shaffer  v.  Hahn,  74. 

V.  Mining  Co,,  365. 
Shahan  v.  Swan,  93. 
Shane  v.  Smith,  18,  553. 
Shanks  v.  Whitney,  225. 
Shannon  v.  Baumer,  339. 

V.  Hoboken,  307. 
Sharkey  v.  Mansfield,  542. 
Sharp  V.  Carroll,  104. 

V.  Jones,  516. 

V.  Thompson,  406. 
Sharpe  v.  Rogers,  123. 
Sharpless'  Appeal,  141. 
Shattock  V.  Shattock,  190. 
Shaw  V.  Andrews,  302. 

V.  Ball,  179. 

V.  Boyd,  173. 

V.  Burney,  141. 

V.  Carpenter,  323,  324. 

V.  Clark,  279,  335. 


63i 


CASES   CITED. 
[Tbe  figures  refer  to  pages.] 


Shaw  V.  Glass  Works,  42. 

V,  Graves,  548. 

V.  McCregory,  424. 

V.  Nudd,  500. 

V.  Pratt,  491. 

V.  Shaw,  92,  553. 

V.  Thompson,  181. 

V.  Williams,  514. 
Sheahan  v.  Barry,  448. 
Shed  V.  Pierce,  381. 

V.  W^oodcock,  540. 
Sheehy  v.  Adareoe,  80. 

V.  Fulton,  82. 
Sheeren  v.  Moses,  452. 
Sheets  v.  Bray,  180. 

V.  Sweeny,  74, 
Sheffield  v.  Ladue,  518. 
Sheffield  Oanal  Co.  v.  Railroad  Co.,  36, 
Sheffield  Furnace  Co.  v.  Coke  Co..  120. 
Shelby  v.  Railroad  Co.,  58. 
Sheldon  v,  Capron,  202, 

V.  Davidson,  224,  225. 

V.  Haxtun,  275. 
Sheldon  Hat-Blocking  Co.  v.  Machine 

Co.,  503,  505. 
Shelley  v.  Mikkelson,  452. 
Shelton  v.  Aultman  &  Taylor  Co.,  273. 

V.  Ellis,  206. 

V.  Jackson,  130. 
Shenandoah  Val.  R.  Co.  v.  Dunlop,  58, 

119. 
Sheneberger  v.  Insvu-ance  Co.,  197. 
Shenk  v.  Mingle,  301. 

V.  Phelps,  337. 
Shepard  v.  Carpenter,  42. 

V,  Gaslight  Co.,  487. 

v.  Rhodes,  109,  115,  138,  140. 
Shepherd  v,  Busch,  436. 

V,  Jenkins,  469. 

V,  Pressey,   102. 
Sherburne  v,  Shaw,  84. 
Sberley  v,  Peehl,  36. 

V.  Riggs,  297, 
Sherman  v.  Brandt,  90. 

V,  Kitsmiller,  44. 

V,  Mulloy,  407, 

V.  Sherman,  245. 

V.  Wilder,  328. 
Sherwln  v.  Brigham,  126. 

V.  Fletcher,  119. 

v,  Sanders,  141. 
Sherv\'oocl  v.  Roundtree,  274. 

V.  Stone,  71. 

V.  Walker,  204. 


Shindler  v.  Houston,  102. 
Shipley  v.  Reasoner,  275. 
Shipman  v.  Horton,  164. 

V.  INIiuing  Co.,  383. 

V.  Seymour,  222, 
Shipp  V.  McKee,  166. 
Shippey  v,  Henderson,  141, 
Shippy  V.  Eastwood,  268. 
Shirk  V,  Shultz,  165,  173. 
Shirley  v.  Healds,  378. 
Shirts  v,  Overjohn,  199. 
Shively  v.  Black,  87, 
Shouinger  v,  Peabody,  505-507. 
Shook  v,  Vanmater,  71. 
Short  v.  Insurance  Co.,  215. 

V.  Millard,  525, 

V,  Mining  Co.,  264. 

V,  Stone,  448, 

V.  Stotts,  72. 
Shoulters  v.  Allen,  183. 
Shriner  v,  Lamboru,  308. 
Shropshire  v.  Burns,  168, 
Shubart's  Estate,  In  re,  17. 
Shuder  v.  Newby,  123. 
Shuetze  v,  Bailey,  500. 
Shuey  v.  U,  S.,  36,  39. 
Shufeldt  V.  Pease,  239. 
Shultz  V,  Johnson,  476,  477,  550. 
Shumate  v.  Farlow,  80. 
Sibley  v,  Felton,  29,  43. 

V.  Holcomb,  197. 
Sldenham  v,  Worlington,  138. 
Siebold  v.  Davis,  28. 
Siedenbender  v,  Charles'  Adm'rs,  261. 
Siegel,  Cooper  &  Co.  v.  Eaton  &  Prince 

Co.,  473. 
Silberman  v.  Fretz,  453. 
Siler  V,  Gray,  477, 
Silsby  V,  Frost,  69, 
Silsby  Mfg.  Co.  v.  Chico,  432,  433. 
Silvers  v.  Potters,  391. 
Silverthorn  v.  Wylie,  139. 
Simar  v.  Canaday,  225. 
Simmons  v,  Clark,  491. 

V.  Green,  459. 

V,  Hamilton,  492. 

V.  More,  518, 
Simmons   Medicine   Co.   v.   Simmons, 

312. 
Simon  v.  Johnson,  398, 

V.  Shoe  Co.,  230,  235. 
Simonds  v.  Heard,  517,  519. 
Simonton  v.  Bacon,  179. 
Simpson  v.  Carson,  526. 


CASES  CITED. 
[The  figures  refer  to  pagea.] 


635 


Simpson  V.  Com.,  90,  501. 

V.  Crippin,  454,  455. 

V.  Dix,  394. 

V.  Evans,  126,  273. 

V.  Garland,  519. 

V.  Harris,  72. 

V.  Hotel  Co.,  193. 

V.  Krumdicli,  101. 

V.  Nichols,  269. 

V.  Railway  Co.,  488. 
Simpson  Centenary  College  v.  Tuttle, 

119. 
Sims  V.  Clark,  383. 

V.  Everhardt,  166,  177 

V.  Ferrill,  226. 

V.  Hutcliins,  91,  553. 
SLmson  v.  Brown,  356. 
Sinclair  v.  Learned,  441. 
Singer  v.  Schilling,  239. 
Singerly  v.  Thayer,  432, 
Singer  Mfg.  Co.  v.  Draper,  337. 

V.  Sammons,  238. 
Singleton  v.  Thomas,  131. 
Singstack's  Ex'rs  v.  Harding,  90,  98. 
Sinsheimer  v.  Mfg.  Co.,  380. 
Sioux  City  Stock  Yards  Co.  v.  Packing 

Co.,  420,  492. 
Sisson  V.  Baltimore,  122,  132. 
Sivers  v.  Sivers,  393,  494. 
Sizer  v.  Daniels,  291. 
Skeate  v.  Beale,  243. 
Skidmore  v.  Bradford,  114. 
Skiff  V.  Johnson,  329. 
Skinker  v.  Armstrong,  70. 
Skinner  v.  Henderson,  338. 

V.  Maxwell,  171. 

V.  Mining  Co.,  126. 

V.  Somes,  363. 
Skipper  v.  Stokes.  365. 
Skobis  V.  Ferge,  366,  368. 
Skrainka  v.  Scharringhausen,  313,  315. 
Slack  V.  Tucker,  515. 
Slade  V.  Elevator  Co.,  132. 

V.  Muti-ie,  419. 

V.  Rhodes,  298. 
Slade's  Case,  532.  \ 

Slagle  &  Co.  V.  Goodnow,  222. 
Slater  v.  Emerson,  451. 

V.  Jones,  133. 

V.  Magraw,  415. 

V.  Railroad  Co.,  429. 
Slaughter  v.  Davenport,  382. 
Slaughter's  Adm'r  v.  Gerson,  219,  228. 
Slayton  v.  Barry,  177. 


Sleeper  v.  Davis,  239. 
Sleght  V.  Hartshorne,  399. 
Sleigh  V.  Sleigb,  535. 
Slingerland  v.  Slingerland,  93. 
Sliugsby's  Case,  384. 
Sloan  V.  Davis,  294. 

V.  Williams,  364. 

V.  Wilson,  87. 
Slocum  V.  Wooley,  290. 
Sloman  v.  Cox,  483. 
Small  V.  Railroad  Co.,  300. 

V.  Schaeffer,  356. 
Smalley  v.  Greene,  80,  311, 
Smart  v.  Gale,  545. 

v.  Sanders,  527. 
Smeed  v.  Foord,  487. 
Smiley  v.  Bell,  364. 
Smith  v.  Algar,  113. 

V.  Alker,  477. 

V.  Applegate,  291, 

V,  Arthur,  58. 

V.  Atwood,  242. 

V.  Bank,  71,  392,  402. 

V.  Banking  Co.,  446. 

V.  Bartholomew,  419. 

V.  Bean,  269. 

V.  Beatty,  221. 

V.  Bettger,  436. 

V.  Blachley,  293. 

V.  Black,  493. 

V.  Bouck,  101. 

V.  Bradley,  65. 

V.  Brady,  431, 

V.  Bromley,  341. 

V.  Brown,  310. 

V.  Bryan,  76. 

V.  Burnham,  57. 

V.  Coker,  124. 

V.  Countryman,  223. 

V.  Cuff,  340,  535. 

V.  Davis,  217. 

V.  Delaney,  70. 

V.  Dunham,  482. 

V.  Edwards,  23. 

V.  Fisher,  102. 

V.  Gowdy,  42. 

V.  Greenlee,  258. 

V.  Hale,  464. 

V.  Harrison,  374. 

V.  Hess,  398, 

V.  Hornback,  235. 

V.  Hudson,  101. 

V.  Hughes,  200,  205,  224. 

V.  Humphreys,  257,  301. 


636 

Smith 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V, 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V, 
V. 
V. 
T. 
V. 
V. 
V. 
V. 
V. 
T. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


V.  Ide,  105. 

Ingram,  15. 

Jernigan,  537. 

Jordan,  448. 

Kay,  250. 

Kidd,  505. 

Kittridge,  108. 

Latlii-op,  493. 

Leady,  307, 

Lewis,  447,  459. 

Lilley,  393. 

Livingston,  239. 

Loyd,  439. 

Mace,  483. 

Machine  Co.,  364. 

Mayo,  163,  167. 

Miller,  380. 

Molleson,  407. 

Monteith,  122. 

Morse,  120. 

Nichols,  50. 

Northrup,  87. 

Ocean  Castle  No.  11,  296. 

Phillips,  130. 

Pierce,  93. 

Plomer,  188. 

Porter,  55. 

Preston's  Estate,  476. 

Price,  299. 

Property  Co.,  219. 

Railroad  Co.,  295,  429,  487. 

Railway  Co.,  266. 

Richards,  216,  218,  SOL 

Robertson,  261,  264, 

Schiele,  74. 

Sherman,  378. 

Silvers,  273. 

Smith,  180,  222,  229,  276,  368, 

528. 
Steely,  293. 
Surman,  76. 
Thompson,  190. 
Townsend,  302. 
Tracy,  524. 
Ulman,  258. 
U.  S.,  481. 
Ware,  117. 

Watson,  267,  418,  422. 
Weaver,  42,  119. 
Whildin,  127,  283. 
Wilcox,  267. 
Williamson,  187,  188. 
Wilson,  397. 
Wood,  GO. 


Smith  v.  Wooding,  552. 

v.  W^right,  398. 
Smith's  Adm'r  v.  Smith,  23G. 
Smith's  Appeal,  89,  307,  308.  324. 
Smith  Premier  Typewriter  Co.  v.  May- 
hew,  293. 
Smitz  v.  Leopold,  509. 
Smock  V.  Brush,  516. 

V.  Pierson,  471. 
Smout  V.  Ilbery,  518. 
Smoyer  v.  Roth,  43. 
Smull  V.  Jones,  258. 
Smyley  v.  Reese,  249. 
Smythe  v.  Allen,  274. 
Snell  V.  Bray,  114. 

V.  Cottingham,  487. 

V.  Insurance  Co.,  207,  401. 

V.  Stone,  501. 
Snelson  v.  State,  544. 
Snider  v.  Thrall,  103. 
Snoddy  v.  Bank,  335. 
Snodgrass  v,  Oabiness,  378. 
Snook  V.  Watts,  183. 
Snow  V.  Judson,  231. 

V.  Perry,  514. 

V.  Wheeler,  317. 
Snyder  v.  Church,  299. 

v.  Insurance  Co.,  406. 

V.  Jones,  60. 
Sobey  v.  Brisbee,  81. 
Solenberger  v.  Gilbert's  Adm'r,  392. 
Solinger  v,  Earle,  341. 
Solomon  v.  Dreschler,  265. 

V.  Penoyar,  518. 
Somerby  v.  Buntin,  101. 
Somers  v.  Pumphrey,  180. 
Somes  v.  Skinner,  179. 
Sondheim  v.  Gilbert,  335,  343. 
Soper  V.  Peck,  198. 
Sornborger  v.  Sauford,  246, 
Sorsbie  v.  Park,  416. 
Souhegan  Nat.  Bank  v.  Wallace,  338. 
Soule  V.  Bouney,  242. 
Southard  v.  Boyd,  287. 

V.  Rexford,  488. 
South  Baltimore  Co.  v.  Muhlbach,  75. 
South  Chicago  City  R.  Co.  v.  Railway 

Co.,  288. 
Southcombe  v.  Bishop,  495. 
Southern   Development   Co.   v.    Sllva, 

224,  227. 
Southern  Exp.  Co.  v,  Dnfifey,  245. 

V.  Glenn,  428. 
Southern  Life  Ins.  Co.  v.  Lanier,  193. 


CASES   CITED. 
[The  figures  refer  to  pagea.] 


637 


Southern  Life  Ins.  Co.  v.  McCain,  526. 
Soutbern  Life  Ins.  &  Trust  Co.  v.  Cole, 

101. 
Southern  Pac.  Co.  v.  Well  Works,  468. 
South   Milwaukee  Boulevard   Heights 

Oo.  V.  Harte,  228. 
Southwell  V.  Bowditch,  520. 
South  wick  V.  Bank,  239. 
Soutier  v.  Kellerman,  397. 
Sowers  v.  Parker,  227. 
Spackman  v.  Board,  296. 
Spader  v.  Mfg.  Co.,  475. 
Spaids  V.  BaiTett,  244. 
Spain  V.  Brent,  370. 
Spalding  v.  Ewing,  285,  420. 

V.  Rosa,  476,  550. 
Spangler  v.  Danforth,  83. 
Sparks  v.  Pittsburgh  Co.,  29. 
Sparling  v.  Marks,  464, 
Spauldiug  V.  Crawford,  245. 
Speake  v.  U.  S.,  483. 
Speed  V.  Hollingsworth,  228. 
Spence  v.  Ham,  431. 

V.  Harvey,  287. 

V.  Healey,  424. 
Spencer  v.  Brockway,  146. 

V.  Field,  521. 

V.  Harding,  38,  41. 

V.  Parry,  535. 

V.  Tilden,  272.  402. 

V.  Towles,  111,  355. 
Spencer's  Appeal,  249. 

Case,  373,  374. 
Speyer  v.  Desjardins,  75. 
Spiller  V.  Skating  Rink,  353. 
Spinks  V.  Davis.  302. 
Spinney  v.  Hill,  96. 
Spinning  v.  Sullivan,  369. 
Spitze  V.  Railroad  Co.,  130. 
Spitzmiller  v.  Fislier,  18, 
Splane  v.  Com.,  266. 
Spofford  V.  Hibbs,  506. 
Spragg  V.  Hammond,  541. 
Sprague  v.  Haines,  95,  96. 

V.  Hazenwinklo,  430. 
Sprague  Electric  Co.  v.  Com'rs,  408. 
Sprankle  v.  Trulove,  360. 
Spring  Co.  v.  Knowlton,  338. 
Springer  v.  Bien,  96. 
Sprye  v.  Porter,  298. 
Spurgeon  v.  McEIwaln,  26.5. 
SpuiT  V.  Insurance  Co,,  401. 
Spycher  v,  Werner;  422. 
Squier  v,  Hydliff,  156, 


Staat  V,  Evan.s,  537. 
Stabler  v.  Cowman,  49,  52. 
Stacey  v.  Kemp,  269. 
Stackpole  v,  Symonds,  268, 
Stacy  V.  Cook,  131. 

v,  Foss,  338,  339. 
Stafford  v.  Bacon,  138,  141. 
I  V.  Roof,  163-165,  176. 

'  Stagg  V.  Compton,  28,  40. 
I  Staines  v.  Shore,  258. 
Stallings  v.  Gottschalk,  393. 
Stall's  Estate,  In  re,  344. 
^  Stamford  Bank  v.  Benedict,  439. 
i  Stamper  v.  Temple,  40,  41,  2&4. 
Standard  Furniture  Co.  v.  Van  Alstine, 

328. 
Standard  Gaslight  Co.  v.  Wood.  451. 
Standard  Oil  Co.  v.  Murray,  351. 
Stanford  v.  McGill,  447. 
Stange  v.  Wilson,  408, 
Stanley  v.  Dowdeswell,  29. 

V.  Jones,  298. 
Stansfield  v.  Kunz,  338. 
Stanton  v.  Allen,  333. 

V.  Embrey,  299. 

V.  Hughes,  237. 

V.  Willson,  159. 
Staples  V,  Bradbury,  528. 

V.  Nott,  343. 

V.  Wellington,  180. 
Starbird  v.  Cranston,  357,  358. 
Star  Glass  Co.  v,  Morey,  16, 
Stark  V.  Parker,  462. 

v,  Sperry,  274. 
Starkie  v.  Perry,  17. 
Starks  v.  Sikes,  503. 
Starr  v.  Bennett,  206,  226. 

V.  Wright,  152. 
Startup  V.  Macdonald,  434,  440. 
State  V.  Andriano,  146. 

V.  Associated  Press,  315, 

V.  Baker,  107. 

V.  Baldwin,  305, 

T,  Board,  323-325. 

V.  lioneil,  280. 

V.  Boyd,  146,  147. 

V.  Brantley,  24.5. 

V.  Burkeholder,  145, 

V.  Carver.  293,  294. 

V.  Cass,  225,  230. 

V.  Chandler,  380,  384. 

V.  Clarke,  150. 

V.  Corlles,  496. 

V.  Dalton,  280. 


638 


CASES  CITED. 
[The  figures  refer  to  pages.] 


State  V.  Findley,  322,  324. 

Y.  Glidden,  317. 

V.  Gott,  59. 

T.  Grant,  145. 

T.  Howard,  158. 

V.  Investment  Co.,  280. 

V.  Judge,  266. 

V.  McBee,  267. 

V.  Matthis,  504. 

V.  Moren,  280. 

V.  Obmer,  268. 

V.  Oil  Co.,  313. 

V.  O'Rourk,  266. 

V.  Powell,  266. 

V.  Railroad  Co.,  289,  337,  451,  475. 

V.  Reigart,  108. 

V.  Schuler,  268. 

V.  Scougal,  260. 

V.  Smith,  147. 

V.  Sooy,  223. 

V.  Sopher,  268. 

V.  Stewart,  317. 

V.  Such,  242. 

V.  Temple,  145. 

V.  Thompson,  52. 

V.  Van  Pelt,  484. 

V.  Wallis,  391. 

V.  Weatherwax,  151. 

V.  Williamson,  284. 

V.  Worthington's  Ex'rs,  474. 
State  Bank  v.  Hastings,  284. 

V.  McCoy,  188. 
State  Nat.  Bank  v.  Bennett,  335. 

V.  U.  S.,  541. 
State  of  Louisiana   v.   New  Orleans, 

531,  533. 
Stavers  v.  Curling,  451,  465. 
Stead  V.  Dawber,  65. 
Steadman  v.  Guthrie,  87. 
Steamboat  Albatross  v.  Wayne,  396. 
Steams  v.  Dillingham,  537. 

V.  Pelker,  298. 

V.  Hall,  65,  426. 

V.  Johnson,  132. 
Stebbins  v.  Bruce,  367. 

V.  Dimcan,  389. 

V.  Niles,  242. 

V.  Palmer,  378. 

V.  Smith,  66. 
Steeds  v.  Steeds,  425. 
Steele  v.  Hobbs,  471. 

V.  Lowry,  54. 

V.  Steele,  114. 
Steene  v.  Aylesworth,  350. 


Stees  V.  Leonard,  473. 
Ste£fes  v.  Lemke,  383. 
Stein  V.  Swensen,  274. 
Steinhauer  v.  Witman,  471. 
Steinman  v.  Magnus,  131. 
Stembridge  v.  Stembridge's  Adm'r,  119. 
Stensgaard  v.  Smith,  21,  33. 
Stephens  v.  Board,  541. 

V.  Davis,  480. 

V.  Railway  Co.,  346. 
Stephenson  v.  Cady,  456,  459. 

V.  Elliott,  357. 

V.  Insurance  Co.,  295w 
Stepney  v.  Lloyd,  242. 
Sterling  v.  Ryan,  422. 

V.  Sinnickson,  303. 
Stem  V.  Meikleham,  158. 
Stetson  V.  Patten,  506. 
Stettauer  v.  Hamlin,  402,  405* 
Stevens  v.  Beals,  189. 

V.  Benning,  365. 

V.  Brennan,  239. 

V.  Catlin,  381. 

V.  Coon,  134. 

V.  Flannagan,  358. 

V.  G  our  ley,  205. 

V.  Gregg,  346. 

V.  Johnson,  470. 

V.  Lee,  95. 

V.  Ludlum,  218,  231. 

V.  Parish,  188. 

V.  Pierce,  237. 

V.  Warren,  277. 
Stevenson  v.  Crapnell,  56. 

V.  Ewing,  264. 

V.  McLean,  33,  35. 

V.  Marble,  234. 
Stewart  v.  Cattle-Ranch,  223. 

V.  Eddowes,  90. 

V.  Emerson,  222. 

V.  Hidden,  419. 

V.  Hopkins,  437. 

V.  Jerome,  72. 

V.  Keith,  437. 

V.  Keteltas,  421. 

V.  Langston,  133. 

V.  Loring,  550. 

V.  Marvel,  409. 

V.  Mather,  510. 

V.  Petree,  272. 

V.  Railroad  Co.,  360. 

V.  Railway  Co.,  324. 

V.  Redditt,  180. 

V.  Schall,  342. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


639 


Stewart  v.  Stone,  47G. 

V.  Thayer,  32G,  33S. 

V.  Trustees,  356. 
Stewart  Paper  Mfg.  Co.  v.  Rau,  436. 
Stewartson  v.  Lothrop,  205. 
Stickley  v.  Insurance  Co.,  03. 
Stiernberger  v.  Gowdy,  439. 
Stiles  V.  McOlellan,  89. 

V.  Probst,  483. 
Stilk  V.  Meyrick,  127. 
Stillman  v.  Noithrup,  274. 
Stines  v.  Dorman,  370. 
Stinson  v.  Anderson,  55. 
Stitt  V,  Huidekopers,  22,  33. 
Stix  V.  Roulston,  418. 
Stock  V.  Stoltz,  18. 
Stockett  V.  Watkins'  Adm'rs,  16,  539. 
Stockham  v.  Stockham,  26. 
Stocks  V.  Dobson,  368,  370. 
Stockton  V.  Turner,  404. 
Stoddard  v.  Ham,  200. 

V.  Martin,  276. 

V.  Mix,  297. 

V.  Penniman,  483. 
Stokes  V.  Anderson,  304. 

V.  Baars,  455. 
Stone  V.  Browning,  105. 

V.  Chamberlain,  423. 

V.  Covell,  229. 

V.  Dennison,  65. 

V.  Denny,  229. 

V.  Graves,  268. 

V.  Harmon,  31. 

V.  Hooker,  327. 

V.  Marsh,  539. 

V.  Seymour,  437,  439. 

V.  Weiller,  241,  357. 

V.  White,  481. 

V.  Wilbern,  179. 

V.  Wood,  517,  519. 
Stoneburner  v.  Motley,  137. 
Stoney  v.  Insurance  Co.,  214. 
Stoney  Creek  Woolen  Co.  v.  Smalley, 

227. 
Storer  v.  Gordon,  428. 
Storrs  V.  Barker,  206. 

V.  Hospital,  299. 
Story  V.  Elliott,  266. 

V.  Gammell,  229. 

T.  Solomon,  280. 

V.  Story,  18. 
Stotts  V.  Leonhard,  170. 
Stoudenmire  v.  Harper,  15w 

V.  McLaclin,  505. 


Stouffer  V.  Latshaw,  242. 
Stout  V.  Bnnis,  282,  291. 
Stoutenburg  y.  Lybrand,  304. 
Stovall  V.  Com.,  514. 
Stover  V.  Duren,  495. 

V.  Mitchell,  244. 
Stow  V.  Ilussell,  420. 
Stowell  V.  Chamberlain,  494. 
Stowers  v.  Hollis,  78,  151,  152. 
Strachan  v.  Stock  Exchange,  339. 
Strait  v.  Harrow  Co.,  313,  316. 
Strand  v.  Griffith,  228. 
Strangborough    and    Warner's    Case, 

117. 
Strasburg  R.  R.  Co.  v.  Echternacht,  22. 
Strasser  v.  Conklin,  503. 
Stray  v.  Russell,  546. 
Streator  v.  Paxton,  383. 
Streeper  v.  Williams,  413. 
Street  v.  Blay,  463,  4&4,  540. 

V.  Goodale,  357. 

V.  Rlgby,  295. 
Strehl  V.  D'Evers,  81. 
Streichen  v.  Fehleisen,  415. 
Strickland  v.  Graybill,  227. 

V.  Turner,  201. 
Strobridge  Lithographing  Co.  v.  Ran- 
dall, 43. 
Strong  V.  Clem,  371. 

V.  Foote,  156. 

V.  Grannis,  245. 

V.  Lane,  203. 

V.  Lawrence,  50. 

V.  Railroad  Co.,  398,  400. 

r.  Sheffield,  122. 

V.  Strong,  233,  236. 
Strother's  Adm'r  v.  Butler,  549. 
Stroud  V.  Smith,  283. 
Struthers  v.  Drexel,  271. 
Stuart  V.  Railroad  Co.,  23. 

V.  Sears,  542,  543. 
Stuber  v.  Schack,  126. 
Studley  v.  Ballard,  127. 

V.  Barth,  68. 
Studwell  V.  Shapter,  177. 
Stuht  V.  Sweesy,  139. 
Sturdivant  v.  Hull,  520. 
Sturges  v.  Bobbins,  15. 
Sturm  v.  Boker,  408,  428. 
Sturtevant  v.  Sturtevant,  247. 
Styles  V.  F.  R.  Long  Co.,  358. 
Suber  v.  Chandler.  50. 
Suffell  V.  Bank,  47'.).  480. 
Sugart  V.  Mays,  398. 


640 


Sullivan  v.  Ass'n,  27L 

V.  Flyno,  183. 

V.  Horgan,  323, 

V.  Latimer,  41,  52. 

V.  O'Neal,  94. 

V.  Railroad  Co.,  268. 

V.  Kudisill,  481,  483. 

V.  Sullivan,  102,  141,  343. 
Summers  v.  Hibbard,  Spencer,  Bartlett 

&  Co.,  473. 
Sumner  v.  Jones,  269. 

V.  Summers,  323. 
Sunderland  v.  Bell,  471. 
Sun   Printing  &  Publishing  Ass'n  v. 

Moore,  413. 
Supreme  Lodge  v.  Portingall,  382. 
Surles  V.  Pipkin,  181. 
Susquebanua  Fertilizer  Co.  v.  White, 

397,  435. 
Sussex  Peerage  Case,  262. 
Sutch's  Estate,  In  re,  108. 
Sutro  V.  Rhodes,  469. 
Sutton  V.  Beckwith,  403. 

V.  Grey,  70. 

V.  Head,  307,  308. 

V.  Morgan,  228. 

V.  Warren,  344, 
Suydam  v.  Jones,  373,  375. 

V.  Westfall,  273. 
Swain  v.  Burnette,  91,  93. 

V,  Schieffelin,  487,  488. 

V.  Seamens,  65,  426,  427. 
Swales  V.  Jackson,  93. 
Swan  V.  Drury,  459. 

V.  Nesmith,  71,  516, 
Swann  v.  Swann,  266,  267,  343. 
Swanson  v.  Kirby,  310. 
Swanstrom  v.  Balstad,  273. 
Swauzey  v.  Moore,  65. 
Swartwout  v.  Railroad  Co.,  288, 
Swasey     y.    Vanderheyden's    Adm'r, 

160. 
Swayne  v.  Riddle,  272. 
Swayze  v.  Hull,  291. 
Sweatland  v.  Telegraph  Co..  321. 
Sweeney  v.  Insurance  Co.,  277. 

V,  McLeod,  285. 

V.  Thoniason,  397. 

V,  U.  S.,  460. 
Sweet  V.  Lumber  Co.,  77. 
Sweigart  v.  Berk,  380. 
Sweney  v.  Davidson,  225. 
Swift  V.  Bennott,  158. 
Swift  Co,  V.  U,  S.,  540. 


CASES   CITED. 
[The  flgiu-es  refer  to  pages.] 

Swift  Iron  Works  v.  Dewey,  396. 
Swiney  v.  Swiney,  54. 
Swisshelm's  Appeal,  249. 
Switzer  v.  Noffsinger,  367,  368. 
Syers  v.  Jonas,  463. 
Sykes  V.  Chadwick,  114. 

V.  St.  Cloud,  466. 
Sylvester  v.  Heurich,  230. 
Synge  v.  Synge,  448, 


Tacoma  Coal  Co,  v.  Bradley,  407. 
Taft  V.  Brewster,  517, 

V.  Sergeant,  167. 
Taggart  v.  Tevanny,  96. 
Taintor  v.  Prendergast,  521,  522. 
Talbot  V.  Bowen,  497,  501, 
Talbott  V.  English,  493. 

V.  Stemmons'  Ex'r,  114, 
Talcott  V.  Henderson,  221,  222. 
Taliaferro  v.  Bank,  505. 
Tallman  v.  Coffin,  374. 

v,  Franklin,  86. 
Talmage  v.  Bierhouse,  514. 

V.  Pell,  328. 
Tamplin  v.  Jones,  205, 
Tanner  v,  Merrill,  132, 
Tansley  v.  Turner,  103. 
Tapley  v.  Butterfleld,  500. 

v.  Tapley,  240. 
Tardeveau  v.  Smith's  EJx'r,  271. 
Tarrabochia  v.  Hickie,  211,  457,  466, 
Tasker  v.  Bartlett,  52, 
Tatam  v.  Reeve,  343, 
Tatlock  v.  Harris,  422. 
Tatterson  v.  Mfg.  Co.,  430. 
Tatum  V.  Kelley,  330. 
Taussig  V.  Hart,  510. 
Tayler  v.  Waters,  76. 
Tayloe  v.  Insurance  Co.,  25,  26,  30,  34. 

v.  Sandiford,  410,  411.  437. 
Taylor,  Ex  parte,  174, 

V.  Allen,  83,  86. 

V.  Atchison,  198, 

V.  Baldwin,  409. 

V.  Bemiss,  299. 

V.  Best,  146. 

V.  Blanchard,  308. 

V.  Bowers,  338. 

V.  Brewer,  44. 

V.  Caldwell,  475,  476. 

V.  Carpenter,   147. 

V.  Conner,  505,  507. 


CASES  CITED 
[The  figures  refer  to  pages.] 


641 


Taylor  v.  Cottrell,  242,  243. 

V.  Deseve,  79. 

V.  Fleckenstein,  229. 

V.  Fleet,  203. 

V.  Ford,  203. 

V.  Gas  Co.,  264. 

V.  Hall,  145. 

V.  Hare,  546. 

V.  Hiestand,  273. 

V.  Higgins,  535. 

V.  Laird,  18. 

V.  Larkin,  4M. 

V.  Lougworth,  462. 

V.  Newspaper  Co.,  413. 

V.  Nostrand,  518. 

V.  Portiugton,  44. 

V.  Pratt,  87. 

V.  Railroad  Co.,  440. 

V.  Rennie,  31. 

V.  Ross,  87. 

V.  Short,  236. 

V.  Smetten,  280. 

V.  Smith,  88,  102. 

V.  Spears,  542. 

V.  Taylor,  248,  355,  381. 

V.  Turley,  402. 

V.  Weeks,  124. 

V.  Williams,  107. 

V.  Young,  268. 
Taymon  v.  Mitchell,  218. 
Teachout  v.  Van  Hoesen,  227,  237. 
Teal  V.  Bilby,  421,  426,  460. 

V.  Spangler,  436. 
Teass  V.  St.  Albans,  74. 
Tecktonius  v.  Scott,  307. 
Teegarden  v.  Lewis,  537. 
Teeters  v.  Lamborn,  68. 
Teipel  v.  Meyer,  119. 
Telford  v.  Garrels,  273. 

V.  Railroad  Co.,  288. 
Temperton  v.  Russell,  350. 
Temple  v.  Johnson,  93. 
Templeton  v.  Wile,  42. 
Tenant  v.  Elliott,  337. 

V.  Tenant,  346. 
Tennent-Stribling  Shoe  Co,  v.  Roper, 

269. 
Tennessee  Mfg.  Co.  v.  James,  412. 
Ten-e  Haute  &  I.  R.  Oo.  v.  Stockwell, 

505. 
Territt  v.  Bartlett,  262,  265,  330,  344. 
Terry  v.  Bissell,  469. 
Ter^illiger  v.  Murphy,  518. 
Tewksbury  v.  Howard,  85. 

Clabk  Cont.(2d  Ed.) — 41 


Tewksbury  v.  Spruance,  510. 
Texas  &  P.  R.  Co.  v.  Smith,  320. 
Texas  &  St.  L.  R.  Co.  v.  Robards,  288. 

V.  Rust,  412. 
Testor  v.  Hutchings,  447. 
Thacher  v.  Hardy,  343. 

V.  Pray,  541. 
Thacker  v.  Hardy,  278,  279,  334. 

V.  Howell,  395. 
Thackrah  v.  Haas,  187. 
Thallhimer  r.  BrinckerhofE,  297,  298, 

300,  365. 
Thames  v.  Jones,  359. 
Thatcher  v.  St.  Andrew's  Church,  54. 
Thayer  v.  Brackett,  442. 

V.  Burchard,  119,  120. 

V.  Daniels,  367,  370. 

V.  Elliott,  346. 

T.  Kelley,  365. 

V.  Ivnote,  205. 

V.  Luce,  88. 

V.  Rock,  322. 

V.  Viles,  58. 
Thing  V.  Libbey,  167. 
Third  Nat.  Bank  v.  Harrison,  279. 

V.  Railroad  Co.,  369. 
Thomas  v.  Armstrong,  78. 

V.  Atkinson,  523. 

V.  Bartow,  208. 

V.  Bland,  375. 

V.  Cadwallader,  450. 

V.  Caulkett,  257,  292. 

V.  Coal  Co.,  16,  25. 

V.  Cook,  70. 

V.  Cronise,  276. 

V.  Dike,  176. 

V.  Evans,  442. 

V.  Greenwood,  27,  29. 

V.  Haywood,  374. 

V.  Hunter,  267. 

V.  Miles'  Adm'r,  308,  324. 

V.  Miller,  273. 

V.  Railroad  Co.,  193,  289.    . 

V.  Richmond,  341. 

V.  Thomas,  107,  109. 

V.  Todd,  435. 
Thomas  B.  &  W.  Mfg.  v.  Railway  Co., 

487. 
Thomas'  Ex'x  v.  Trustees,  89,  124. 
Thomas  Mfg.  Co.  v.  Prather,  356,  857. 
Thomason  v.  Dayton,  58. 
Thompson  v.  Alger,  104. 

V.  Blanchard,  65,  87. 

V.  Brannin,  396. 


642 


[The 


CASES  CITED, 
figures  refer  to  pages.] 


Thompson  v.  Brown,  424. 

V.  Davenport,  520. 

V.  Gaffey,  468. 

V.  Gould,  201,  476. 

V.  Hamilton,  163,  398. 

V.  Hawks,  249. 

T.  Howard,  539. 

V.  Hudgins,  141. 

V.  Lay,  167. 

V.  Leach,  182. 

V.  Lee,  218. 

V.  Libby,  467. 

V.  Lockwood,  242,  245. 

V.  McKee,  393. 

V.  Mfg.  Co.,  470. 

V.  Niggley,  246. 

V.  Peck,  237. 

V.  Percival,  423. 

V.  Reynolds,  296,  298. 

V.  Rose,  239. 

V.  Smith,  57. 

V.  Stevens,  44. 

V.  Stewart,  394,  513. 

V.  Taylor,  343,  345. 

V.  Warren,  IBS,  298. 

V.  Whitman,  293. 
Thomson  v.  Beal,  403. 

V.  Gortner,  43,  44. 

V.  James,  26. 

V.  Poor,  421,  425. 
Thormaehlen  v.  Kaeppel,  166,  178. 
Thorn  v.  Kuapp,  4SS. 

V.  Plnkham,  243. 
V.  Smith,  231. 
Thomborow  v.  Whiteacre,  134. 
Thorndike  v.  Stone,  272. 
Thorne  v.  Deas,  111,  498. 

V.  Yontz,  286,  335. 
Thomell  v.  Brockton,  395. 
Thornett  v.  Haines,  540. 
Thornhill  v.  Neats,  421. 
Thomtpn  v.  Appleton,  482,  483. 
V.  Kelly,  84. 
V.  Kempster,  202. 
V.  Railroad  Co.,  407. 
V.  Strauss,  537. 
V.  Sturgis,  19. 
V.  Wynn,  464. 
Thoroughgood's  Case,  197. 
Thoi-p  V.  Thorp,  344. 
Thorpe  v.  Thorpe,  450. 
Thrall  v.  Newell,  405. 

V.  Thrall,  218. 
Thrift  V.  Payne,  462. 


Thruston  v.  Thornton,  13,  22,  38.  40. 
Thum  Co.  V.  TloczjTiski,  312. 
Thurman  v.  Burt,  244. 
Thurston  v.  Arnold,  409. 
V.  Blanchard,  235. 
v.  Ludwig,  426. 
V.  Mills,  537. 
V.  Minke,  376. 
Thwing  V.  Lumber  Co.,  201. 
Tibbetts  v.  Gerrish,  141. 
Tibbits  V.  George,  368. 
Tice  V.  Freeman,  86. 
Tichnor  v.  Hart,  19. 
Tiddy  v.  Harris,  130. 
Tier  v.  Lampson,  502,  526. 
Tightmeyer  v.  Mongold,  539. 
Tilley  v.  Ass'n,  271. 
V.  Damon,  242. 
Tillier  v.  Whitehead,  499. 
Tillinghast  v.  Boothby,  311. 
Tillock  V,  Webb,  268,  269. 
Tillon  V.  Britton,  441. 
Tillotson  V.  Grapes,  471. 

V.  Prichard,  375. 
Timmerman  v.  Dever,  311. 
Timothy  v.  Wright,  286. 
Tingle  v.  Fisher,  367,  370. 
Tingley  v.  Boom  Co.,  89. 

v.  Land  Co.,  420. 
Tinn  v.  Hoffman,  21,  31,  36. 
Tisdale  v.  Han-is,  100. 
Tisher  v.  Becliwith,  53. 
Titcomb  v.  Vantyle,  180. 
Tobey  v.  Robinson,  323. 

V.  Wood,  162. 
Tobias  v.  Lissberger,  464. 

V.  Rogers,  534. 
Tobin  V,  Bass,  54. 
Todd  V.  Clapp,  162. 
V.  Grove,  250. 
V.  Huntington,  431. 
V.  Stewart,  50. 
V.  Stokes,  375. 
V.  Weber,  356. 
Tode  V.  Gross,  312. 
Toland  v.  Corey,  206. 

V.  Murray,  517. 
Toledo  Sav.  Bank  v.  Rathmann,  470. 
Toledo  W.  &  W.  R.  Co.  v.  Chew,  549. 
Tolhurst  V.  Powers,  124. 
Tolman  Co.  v.  Reed,  344. 
Tolson's  Adm'r  v.  Garner.  ISO. 
Tomkinson  v.  Straight.  102. 
Tompkins  v.  Batie,  442. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


643 


Tompkins  v.  Hill,  132,  492. 
Tone  V.  Shuuklaml,  iiGT. 

V.  Wilson,  218. 
Tool  Co.  V.  Xon-is,  28G,  287. 
Topeka  Water  Supply  Oo.  v.  Root,  183. 
Topbam  v.  Roche,  514. 
Toplilf  V.  McKendree,  41. 

V.  Topliff,  407. 
Topp  V.  White,  471. 
Topping  V.  Bickford,  192. 

V.  Swords,  42. 
Tornado,  The,  475. 
Torrence  v.  Shedd,  296. 
Torrey  v.  U.  S.,  145. 
Totten  V.  U.  S.,  390. 
Touche  V.  Warehousing  Co.,  353. 
Touissaint  v.  Martiunant,  534. 
Touro  V.  Cassin,  344. 
Towle  V.  Dresser,  154,  164. 

V.  Larrabee,  266. 

V.  Leavitt,  513-515. 

V.  Wadsworth,  75. 
Towner  v.  Lucas'  Ex'r,  393. 
Town  of  Brandon  v.  Jackson,  132. 
Town  of  Eagle  v.  Kohn,  335. 
Town  of  Grand  Isle  v.  Kinney,  119. 
Town  of  Hamden  v.  Merwin,  45. 
Town  of  Meredith  v.  Ladd,  282. 
Town   of   Royalton   v.   Turnpike   Co., 

405. 
Town  of  Rutland  v.  Page,  52. 
Town  of  Sharon  v.  Gager,  242. 
Town  of  Thetford  v.  Hubbard,  282. 
Townsend  v.  Cowles,  207,  226,  544. 

V.  CroM'dy,  542,  543. 

V.  Hargraves,  91,  92,  101,  103,  105. 

V.  Minford,  81. 

V.  Rackham,  357. 

V.  Vanderwerker,  93,  94. 

V.  Wagon  Co.,  480. 
Tracey  v.  Sacket,  251. 
Tracy  v.  Keith,  188. 

V.  Talmage,  329,  330,  340. 
Trader  v.  Jarvis,  152. 

V.  Lowe,  167. 
Traders'  Bank  v.  Alsop,  335. 
Traders'  Nat.  Bank  v.  Parker,  123,  175. 
Tradesman's  Bank  v.  Green,  367. 
Traill  v.  Baring,  218. 
Train  v.  Gold,  15,  107,  111. 
Trainer    v.    Trumbull,    157,    159,    160, 

547. 
Trambly  v.  Ricard.  198. 
Trammell  v.  Vaughan,  444. 


Trasher  v.  Everhart,  52,  53. 
Trask  v.  Vinson,  471. 

Traver  v.  ,  107,  113. 

Travers  v.  Orane,  528,  529. 

Travis  v.  Insurance  Co.,  32. 

Treadwell  v.  Tobert,  293. 

Treat  v.  Hiles,  75,  78. 

Tredway  v.  Riley,  344. 

Trentman  v.  Wahrenburg,  307. 

Trenton  Mut.  Life  &  Fire  Ins.  Co.  v. 

Johnson,  276,  277. 
Trenton  Potteries  Co.  v.  Oliphant,  309, 

310,  313,  315,  415. 
Trenton   Terra   Cotta   Co.   v.   Shingle 

Co.,  401. 
Tretheway  v.  Hulett,  236. 
Trevor  v.  Wood,  26,  27,  30,  83. 
Trigg  V.  Read,  207,  208,  544. 
Trimble  v.  Thorson,  501. 
Trlmbo  v.  Trimbo,  179. 
Trine,  Appeal  of,  271. 
Tripp  V.  Brownell,  366. 
Trist  V.  Child,  285,  286,  323. 
Troeder  v.  Hyams,  389. 
Trouson  v.  University,  452. 
Trotter  v.  Heckscher,  455. 
Trounstine  v.  Sellers,  22,  30. 
Ti'oup  v.  Appleman,  236. 
Trout  V.  Emmons,  513. 
Troutman  v.  Lucas,  492. 
Trower  v.  Elder,  412,  414. 
Troy  V.  Bland,  543. 
Troy  Fertilizer  Oo.  v.  Logan,  45. 
Troy  &  G.  R.  Co.  v.  Com.,  145. 
Truax  v.  Miller,  132. 
Truby  v.  Mosgrove,  271,  272. 
Trudo  V.  Anderson,  513. 
True  V.  Telegraph  Co.,  487. 
Trueblood  v.  Trueblood,  154,  505. 
Trueman  v.  Fenton,  140. 

V.  Loder,  85. 
Truett  V.  Wainwright,  480. 
Trundle's  Adm'r  v.  Riley,  283,  284. 
Truscott  V.  King,  439. 
Trustees  of  Christian  Church  of  Wol- 

cott  V.  Johnson,  192. 
Trustees  of  Cincinnati  Tp.  v.  Ogden, 

192. 
Trustees     of     Columbia     College     v. 

Lynch,  376. 
Trustees     of     Columbia     College     v. 

Thacher,  376. 
Trustees   of   First  Baptist  Church   v. 

Bigelow,  90. 


644 


GASES  CITED. 
[The  figures  refer  to  pages.] 


Trustees  of  First  Orthodox  Congrega- 
tional Cburcli  V.  Walratli,  414. 
Trustees  of  Maine  Cent.  Inst.  v.  Has- 
kell, 119. 
Trustees  of  Troy  Conference  Academy 

V.  Nelson,  118. 
Tuck  V.  Downing,  219,  227. 
Tucker  t.  Bartle,  126. 

V.  Cocke,  188. 

V.  Lawrence,  32,  526. 

V.  Moreland,    150,    152,    154,    170, 
173. 

V.  Mowray,  269. 

V.  Smith,  399. 

V.  Woods,  21,  35,  118. 
Tuckerman  v.  Hinkey,  268 

V.  Newhall,  382. 
Tucker  Mfg.  Co.  v.  Fairbanks,  520. 
Tufts  V.  Mining  Co.,  83. 
Tulk  V.  Moxhay,  376, 
Tullett  V.  Armstrong,  I'ji', 
Tuoro  V.  Cassin,  546. 
Tupper  V.  Cadwell,  158,  159. 
Turlington  v.  Slaughter,  140,  142. 
Turnbull  v.  Brock,  126,  130. 
Turner  v.  Egerton,  533,  534. 

V.  Frisby,  158,  548. 

V.  Gaither,  156. 

V.  Hubbell,  67. 

V.  Insurance  Co.,  504. 

V.  Mason,  100. 

V.  Owen,  127. 

V.  Flowden,  493. 

V.  Rusk,  184. 

V.  Thompson,  339. 

V.  Webster,  547. 
Tuscaloosa  Ice  Mfg.  Co.  V.  Williams, 

315. 
Tutt  V.  Brown,  522. 

V.  Ide,  244. 
Tuttle  V.  Armstead,  70,  534. 

V.  Campbell,  537. 

V.  Love,  21. 
Tweddle  v.  Atkinson,  352,  353. 
Tweeddale  v.  Tweeddale,  358. 
Tweedie  Trading  Co.  v.  James  P.  Mc- 
Donald Co.,  474. 
Twenty-Third  St.   Baptist  Church   v. 

Cornell,  119. 
Twitchell  v.  Bridge,  218. 
Tyler  v.  Ass'n,  130. 

V.  Carlisle,  330,  331,  338,  339. 

V.  Fleming,  150,  169. 

V.  Telegraph  Co.,  320. 


Tyler  v.  Waddington,  268. 

V.  Young,  471. 
Tyler  Cotton  Press  Co.  v.  Chevalier, 

130. 
Tynan  v.  Dullnig,  90. 
Tysen  v.  Somerville,  424. 
iS'Son  V.  Passmore,  216. 

V.  Rickard,  270,  274. 

u 

Udell  V.  Atherton,  524. 
Ueberroth  v.  Riegel,  22. 
Uecker  v,  Koehn,  168,  171. 
Uhler  V.  Applegate,  268. 
Uhlig  V.  Barnum,  421. 
UUman  v.  Ass'n,  339. 
Ullmann  v.  Railway  Co.,  403. 
Ulmer  v.  Farnsworth,  397. 
UlrJch  V.  Arnold,  41. 
Underwood  v.  Barker,  309. 

V.  Brockman,  226. 

V.  DoUins,  52. 

V.  Lewis,  476. 

V.  Scott,  264. 

V.  Wolf,  421,  469. 
Unger  v.  Boas,  335. 
Ungericht  v.  State,  268. 
Union  Bank  v.  Coster's  Ex'rs,  24. 

V.  Jacobs,  193. 
Union  Cent.  Life  Ins.  Co.  v.  Berlin, 
322. 

V.  Hilliard,  151,  271. 

V.  Schidler,  235,  237. 
Union  Hardware  Co.  v.  Mfg.  Co.,  194. 
Union  Locomotive  &  Express  Co.  v. 

Railway  Co.,  324, 
Union  Mut.  Ins.  Co.  v.  Kirchoff.  58. 
Union  Mut.  Life  Ins.  Co.  v.  Hanford, 

354. 
Union  Nat.  Bank  v.  Baldenwick,  435. 

V.  Miller,  30. 

V.  Railroad  Co.,  262. 

V.  Roberts,  480. 
Union  Pac.  R.  Co.  v.  Anderson,  132. 

V.  Durant,  354. 

V.  McAlpine,  94. 

V.  Rainey,  319. 
Union  Railway  Storage  Co.  v.  McDer- 

mott,  357. 
Union  Strawboard  Co.  v.  Bonfield,  308. 
U.  S.  V.  Ass'n,  313. 

V.  Bainbridge,  151. 

V.  Behan,  449,  468,  488. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


645 


D.  S.  V.  Blakeney,  152. 

V.  Biadley,  322,  324. 

V.  Charles,  201. 

V.  Clarke,  145. 

V.  Cummiiig,  145. 

V.  E.  C.  Kight  Co.,  313. 

V.  Grossmaj'er,  147. 

V.  Hodgsou,  324. 

V.  Holmes,  146. 

V,  Huckabee,  240,  241,  243. 

V.  Ingate,  145. 

V.  Kirkpatrick,  439. 

V.  Lane,  145. 

V.  Mora,  324. 

V.  Morgan,  435. 

V.  Nortbern  Securities  Co.,  314. 

V.  Price,  3&4. 

V.  Railroad  Co.,  405. 

V.  Ptodgers,  345. 

V.  Spalding,  482. 

V.  Tlngey,  145. 
United  States  Fire  &  Marine  Ins.  Co. 

V.  Kimberly,  214. 
United  States  Mortgage  Co.  v.  Hen- 
derson, 125,  177,  505,  722. 
Universal    Fashion    Co.    v.    Skinner, 

390. 
Updike  V.  Ten  Broeck,  78. 
Updyke  v.  Titus,  109. 
Up  River  Ice  Co.  v.  Denier,  310,  364. 
Upson  V.  Holmes,  76.  * 

Upton  V.  Tribilcock,  198,  207,  226. 
Upton  Mfg.  Co.  V.  Huiske,  464. 
Urmston  v.  Whitelegg,  306,  313. 
Urquhart  v.  Mortgage  Co.,  485. 
Usher  v.  McBratney,  290. 
Utley  V.  Donaldson,  28,  29,  426. 

V 

Vahlberg  v.  Keaton,  273. 
Vail  V.  Durant,  516. 
Vale  V.  Insurance  Co.,  214. 
Valentine  v.  Bell.  141. 

V.  P'oster,  109. 

V.  Piper,  389. 
Valentini  v.  Canali,  174. 
Vallandingham  v.  Johnson,  170. 
Vallett  V.  Parker,  335. 
Valley  Ry.  Co.  v.  Iron  Co.,  544. 
Valpy  V.  Sanders,  539. 
Van  Alen  v.  Vanderpool,  515. 
Van  Alstyne  v.  Van  Slyck,  415. 
Van  Atta  v.  McKinney's  Ex'rs,  149. 


Van  Bramer  v.  Cooper,  162. 
Van  Brunt  v.  Eoll\  482,  483. 

V.  Singley,  198. 
Van  Campen  v.  P'ord,  123. 
Vance  v.  Funk,  52. 

V.  Lowther,  480. 

V.  Word,  176. 
Van  Clief  v.  Van  Vechten,  431. 
Vanderbeck  v.  Rochester,  544. 

V.  Vanderbeck,  419. 
Vanderbilt  v.  Schreyer,  127,  128. 
Van  Deusen  v.  Blum,  547. 

V.  Sweet,  181. 
Van  Dusen  v.  Mining  Co.,  526. 
Van  Gorder  v.  Bank,  122. 
Van  Horn  v.  Hann,  181. 

V.  Keenan,  187. 

V.  Kittitas  County,  292. 

V.  Van  Horn,  350. 
Van  Houten  v.  Morse,  223. 
Van  Hoven  v.  Irish,  209. 
Van  Keuren  v.  Corkins,  368. 
Van  Leyen  v.  Wreford,  380. 
Vannoy  v.  Patton,  265. 
Van  Patton  v.  Beals,  184. 
Van  Santen  v.  Oil  Co.,  535. 
Van  Schaick  v.  Edwards,  344. 

V.  Van  Buren,  44. 
Van  Syckel  v.  O'Hearn,  425. 
Van  Trotha  v.  Bamberger,  75. 
Van  Valkenburg  v.  Rogers,  22. 
Van  Valkenburgh  v.  Smith,  59. 
Van  Valkinburgh  v.  Watson,  159,  548. 
Van  Vleet  v.  Sledge,  343. 
Van  Vleit  v.  Jones,  58. 
Van  Wyck  v.  Brasher,  187. 
Varney  v.  Conery,  131,  492. 

v.  French,  266. 
Varnum  v.  Hygate,  201. 

V.  Thruston,  406. 
Vassar  v.  Camp,  26,  27,  30. 
Vasse  V.  Smith,  178. 
Vaughan  v.  Godman,  54. 

V.  Porter,  405. 
Vaught  V.  Rider,  275. 
Vawter  v.  Baker,  517. 

V.  Griffin,  100. 
Veach  v.  Thompson,  246. 
Veal  V.  Fortson,  163. 
Veazey  v.  Allen,  285. 
Veazie  v.  Williams,  238. 
Vohue  V.  Pinkham,  164.  175. 
Venezuela  R.  Co.  v.  Kisch,  216. 
Veunum  v.  Gregory,  508. 


046  CASES   CITED. 

[The  figures  refer  to  pages.] 
Vent  V.  Osgood,  150,  153,  1G4,  170,  175.    Wahl  v.  Barnum, 


Vermont  Loan  &  Trust  Co.  v.  Hoff- 
man, 261. 

Vickery  v.  Welch,  312. 

Vilas  V,  Downer,  149. 

Vilett  V.  Moler,  227. 

Village  of  Port  Jervis  v.  Bank,  535. 

Viual  V.  Improvement  Co.,  207. 

Vincent  v.  Germond,  101. 

Viney  v.  Rignold,  295. 

Vinton  v.  Baldwin,  508. 

Vinz  V.  Beatty,  269. 

Violett  V.  Patton,  87. 

V.  Powell's  Adm'r,  &4,  85. 

VioHette  v.  Rice,  392. 

Virginia  Hot  Springs  Co.  v.  Harrison, 
28. 

Vischer  v.  Yates,  276,  291. 

Viser  v.  Bertrand,  304,  331. 

Vittum  V.  Estey,  444. 

Vogle  V.  Ripper,  483. 

Vogt  V.  Hecker,  473. 

Volk  V.  Stowell,  477. 

Voluntary  Relief  Department  v.  Spen- 
cer, 295. 

Volz  V.  Grummett,  409. 

Von  Brandenstein  v.  Ebensberger,  124. 

Vooght  V.  Winch,  50. 

Vos  V.  Robinson,  398. 

Vosburgh  v.  Diefendorf,  335. 

Vose  V.  Insurance  C5o.,  215. 

Vought  V.  Williams,  460. 

Vreeland  v.  Stone  Co.,  232. 

Vrooman  v.  McKaig,  537. 
V.  Tui'ner,  357. 


w 


Un.  V.  James,  237. 
Creamery    Co.    v. 


Wabash  Val.  Prot. 
Waddy    Bluegrass 

Mfg.  Co.,  416. 
Wade  V.  Kalbfleisch,  7,  378. 

V.  Pulsifer,  249. 

V.  Simeon,  124. 
Wadhams  v.  Page,  423. 
Wadleigh  v.  Sutton,  551. 
Wadsworth  v.  Sharpsteen,  187. 

V.  Wendell,  52. 
Wager  v.  Wagoner,  183. 
Waggoner  v.  Gray's  Adm'rs,  69. 
Wagner  v.  Breed,  343. 

V.  Hildebrand,  278. 

V.  Insurance  Co.,  233. 

V.  J.  &,  G.  Meakin.  119. 


78. 

Wailing  v.  Toll,  155,  157. 
Wain  V.  Warlters,  87. 
Wainer  v.  Insurance  Co.,  105. 
Wainwright  v.  Wilkinson,  154. 
Wait  V.  Baker,  103. 

V.  Maxwell,  182. 

V.  Pomeroy,  479,  480. 

V.  Wait's  Ex'r,  69. 
Waite  V.  Leggett,  16,  543. 

V.  Merrill,  546. 
Wake  V.  Harrop,  388,  394. 
Wakefield  v.  Brown,  394. 
Wakeman  v.  Mfg.  Co.,  488. 
Walden  v.  Insurance  Co.,  214. 
Waldron  v.  Murphy,  442. 
Wales  V.  Stout,  66. 
Walker  v.  Abt,  272. 

V.  Bank,  380. 

V.  Barron,  398 

V.  Brooks,  364. 

V.  Brown,  16. 

V.  Conant,  538,  543. 

V.  Cronin,  350. 

V.  Denison,  430,  526. 

V.  Douglas,  403. 

V.  Duncan,  549. 

V.  Ebert,  198. 

V.  Edward  Thompson  Co.,  432, 

V.  Emerson,  495. 

V.  France,  394. 

V.  Gregory,  300. 

V.  Haggerty,  507. 

V.  Henry,  141. 

V.  Herring,  515. 

V.  Jeffries,  330. 

V.  Johnson,  80. 

V.  Lovell,  324. 

V.  McCulloch,  381. 

V.  Nussey,  104. 

V.  Perkins,  300,  345. 

V.  Perrj'man,  298. 

V.  Railroad  Co.,  78. 

V.  Shackelford,  96. 

V.  Skipwith,  514. 

V.  Smith,  111. 

V.  Supple,  101. 

V.  Tucker,  475. 

V.  Walker,  54,  303. 
Wall  V.  Railroad  Co.,  35. 

V.  Schneider,  280. 

V.  Wall,  54.  55. 
Wallace  v.  ILirris,  247. 

V.  Jewell,  481. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


647 


Wallace  v.  Lawyer,  503. 

V.  Morgan,  3138. 

V.  Morss,  177. 

V.  Railway  Ck).,  229. 

V.  Kappleye,  300,  301. 

V.  Scoggin,  94. 

V.  Tlce,  483. 

V.  Townsend,  37. 
Wallace's  Lessee  v.  Lewis,  169,  170. 

V.  Miner,  58. 
Waller  v.  Cralle,  244. 
Wallis  V.  Bardwell,  158. 

V,  Carpenter,  383,  412. 
Wall's  Appeal,  44. 
Walls  V.  Bailey,  399. 
Walpole  V.  Bridges,  429. 
Walsh  V.  Ass'n,  39,  441. 

V.  Featlierstone,  356. 

V.  Fisher,  476. 

V.  Morse,  229. 

V.  Trevanion,  403. 
Walter  v.  Foutz,  274. 

V.  Victor  G.  Bloede  Co.,  65. 
Walter  A.  Wood  Mach.  Co.  v.  Gaert- 

ner,  393. 
Walters  v.  Eaves,  230. 
Walton  V.  Black,  455. 

V.  Burton,  54. 

V.  Hastings,  480. 
Walton  Plow  Oo.  v.  Campbell,  483. 
Wambole  v.  Foote,  154. 
Wamsley  v.  Lindenberger,  153. 
Wanmaker  v.  Van  Buskirk,  495. 
Wann  v.  McNulty,  478. 
Wanner  v.  Landis,  390. 
Waples  V.  Hastings,  154. 
Ward  V.  Anderson,  169. 

V.  Armstrong,  217,  248,  249. 

V.  Building  Co.,  411,  412. 

V.  Hackett,  481. 

V.  Hobbs,  224. 

V.  Hollins,  134. 

V.  Johnson,  380,  383. 

V.  Laverty,  166. 

V.  Matthews,  80,  409. 

V.  Morrison,  370. 

V.  Vance,  475. 

V.  Vosburgh,  343. 

V.  Ward,  267. 
Warden  v.  Fosdick,  235. 

V.  Williams,  42. 
Warder,   Bushnell   &  Glessner  Co.  v. 
Whitish,  228. 

V.  Willyard,  483. 


Ware  v.  Allen,  70,  392. 

V.  Cartledge,  154. 

V.  Chappell,  450,  451. 

V.  Curry,  324. 

V.  Wisner,  146,  147. 
Warfield  v.  Booth,  308. 
Waring  v.  Mason,  85,  90. 
Warner  v.  Martin,  511. 

V.  Railway  Co.,  77,  79. 

V.  Willoughby,  72. 
Warnock  v.  Campbell,  186. 

V.  Davis,  277. 
Warren  v.  Abbett,  70. 

V.  Bank,  366. 

v.  Costello,  119. 

V.  Hodge,  126. 

V.  Lynch,  52,  53. 

V.  Wheeler,  433. 
Warren  Chemical  &  Mfg.  CJo.  v.  Hol- 

brook,  77. 
W^arring  v.  Williams,  484. 
Warrington  v.  Early,  481. 
Warwick  v.  Cooper,  154. 
Washaw  v.  Gimble,  305. 
Washbourn  v.  Burrows,  76. 
Washburn  v.  Dosch,  80,  307. 

V.  Fletcher,  26. 

V.  Investment  Co.,  356. 
Washington  v.  Johnson,  428. 
Washington,  A.  &  G.  Steam  Packet  Co. 

V.  Sickles,  79. 
Washington  Brewery  Co.  v.  Carry,  93. 
Washington  Cent.   Imp.   Co.  v.  New- 
lands,  228. 
Washington  Mills  Mfg.  Co.  v.  Insur- 
ance Co.,  215. 
Washington  Nat.  Building,  Loan  &  In- 
vestment Ass'n  V.  Stanley,  271,  344. 
Washington  Natural  Gas  Co.  v.  John- 
son, 437. 
Washington  University  v.  Finch,  148. 
Wassermann  v.  Sloss,  338. 
Watchman  v.  Crook,  465. 
Waterbury  v.  Andrews,  231. 

V.  Egan,  264. 
Waterman  v.  Andrews,  406. 

V.  Banks,  410. 

V.  Merrow,  367. 
Waters  v.  Bean,  141. 

V.  Mattingley,  223,  224. 

V.  Shafer,  68. 

V.  Tompkins,  496. 

V.  Trust  Co.,  118. 


G48 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Waters  t.  White,  121,  122. 
Watkins  v.  Baird,  242. 

V.  Brant,  249. 

V.  De  Armond,  499. 

V.  Hodges,  421. 

V.  Rymill,  20. 

V.  "Watkins,  7. 
Watson  V.  Bagaley,  367. 

V.  Baker,  216. 

V.  Blaine,  404. 

V.  Blossom,  135. 

V.  Brown,  203. 

V.  Cresap,  545. 

V.  Oi'oss,  155,  158. 

V.  Doyle,  115. 

V.  Inhabitants,  487. 

V.  King,  529. 

V.  Mahan,  249. 

V.  Randall,  69. 

V.  Sherman,  90,  500. 

V.  Turner,  140. 
Watson's  Ex'rs  v.  McLaren,  87. 
Watt  V.  Cranberry  Co.,  84,  85. 
Watte  V.  Wickersham,  2S0. 
Watters  v.  McGuigan,  74. 
Watts  v.  Camors,  411,  414. 

V.  Frenche,  126,  130. 

V.  Van  Ness,  266. 

V.  Weston,  486. 

V.  Witt,  94. 
Waugh  V.  Beck,  331. 

V.  Cope,  438. 

V.  Mon-is,  326. 
Way  V.  Langley,  257. 

V.  Si)erry,  140. 
Waydell  v.  Luer,  423. 
Wayman  v,  Wayman,  18. 
Waymell  v.  Reed,  329. 
Wayne  Co.  v.  Randall,  544. 
Wead  V.  Larkin,  375. 
Weare  v.  Gove,  518. 
Weatherby  v.  Smith,  273. 
Weaver  v.  Burr,  30,  33,  36. 

V.  Harlan,  339. 

V.  Jones,  151,  153. 

v.  Whitney,  283,  284. 
Webb  V.  Buckelew,  494. 

v.  England,  490. 

V.  Railroad  Co.,  100. 

V.  Steele,  362. 

V.  Stephenson,  448. 
Webber  v.  Bridgman,  528. 

V.  Donelly,  330. 

V.  Howe,  346. 


Weber  v.  Barrett,  243,  294. 

V.  Christen,  54. 

V.  Shay,  293. 

V.  Squier,  486. 
Webster  v.  Anderson,  103. 

V.  Brown,  85. 

V,  Cecil,  205,  208,  400,  490. 

V.  Fleming,  357,  358. 

V.  Gray,  93. 

V.  Le  Compte,  65,  141. 

V.  Hunger,  329,  345. 

V.  Woodford,  179. 
Weed  V.  Adams,  516. 

V.  Black,  285. 

V.  Burt,  526, 

V.  Jewett,  365. 
Week  V.  Tibold,  40,  41. 
Weeks  v.  Hunt,  369. 

V.  Lippencott,  291. 

V.  Maillardet,  56. 

V.  Martin,  74. 
Weems  v.  Jones,  273. 
Weiden  v.  Woodruff,  21,  31,  33,  34. 
Weidler  v.  Kauffman,  362. 
Weidner  v.  Phillips,  227. 
Weintz  v.  Hai'ner,  457. 
Weir  V.  Hudnut,  104. 

V.  Marley,  305. 
W^eir  Plow  Co.  v.  Walmsley,  407, 
Weis  V.  Devlin,  473. 
Welch  V.  Bunce,  164. 

V.  Darling,  95. 

V.  Goodwin,  521. 

V.  McDonald,  412. 

V.  Mandeville,  362. 

V.  Marvin,  68. 

V.  Miller,  492. 

V.  Welch,  154. 

V.  Whelpley,  93. 
Weld  V.  Bank,  441. 

V.  Nichols,  376. 
Weller's  Appeal,  199. 
Welling  V.  Ass'n,  345. 
Wellington  v.  Kelly,  298. 
Wells  V.  Alexandre,  120. 

V.  Atkinson,  405. 

V.  Calnan,  473,  476. 

V.  Foster,  284,  285. 

V.  Monihan,  96. 

V.  People,  262,  264. 

V.  Porter,  534. 

V.  SeLxas,  166. 

V.  Smith,  409. 

V.  Stout,  303. 


CASES   CITED. 
[Tha  figures  refer  to  pages.] 


649 


Wells  V.  TregusaD,  404. 

V.  Wells,  150. 
Wellstoa  Coal  Co.  v.  Paper  C!o.,  468. 
Welsh  v.  Gossler,  462. 

V.  Huckestein,  397. 
Welty  V.  Jacobs,  490. 
Wendover  v.  Baker,  126. 
Wentworth  v.  Day,  38. 

V.  Dows,  4G9. 

V.  Woodside,  266. 
Werner  v.  Humphreys,  37. 
Werner's  Appeal,  155. 
Wertz  V.  Telegraph  Co.,  320. 
Wessell  V.  Glenn,  480. 
Wesson  v.  Com.,  145. 
West  V.  Anderson,  221,  224. 

V.  Bechtel,  410,  455,  456,  466. 

V.  Blakeway,  424. 

V.  Camden,  301. 

V.  Gregg,  158. 

V.  Holmes,  276. 

V.  Moore,  176. 

V.  Russell,  180. 

V.  Van  Pelt,  462. 
Westcott  V.  Mitchell,  126,  128. 
Western  Assur.  Co.  v.  Towle,  538,  539. 
Western  Union  Tel.  Co.  v.  Blanchard, 
320. 

V.  Carew,  320. 

V.  Chamblee,  320. 

V.  Cook,  320. 

V.  Griffin,  268. 

V.  Linn,  320. 

V.  Railroad  Co.,  289. 

V.  Semmes,  449. 

V.  Shotter,  204. 

V.  Telegraph  Co.,  289. 

V.  Tyler,  320. 

V.  Wilson,  268. 

V.  Yopst,  268. 
Western  Wooden-Ware  Ass'n  v.  Star- 
key,  307. 
Western  &  A.  R.  Co.  v.  Bishop,  319. 

V.  Cotton  Mills,  343. 
Westfall  V.  Parsons,  96. 
Westlake  v.  Adams,  546. 
Westlake  &  Button  v.  St.  Louis,  540. 
Westman  v.  Krumweide,  392. 
Westmeath  v.  Westmeath,  303. 
Weston  V.  Myers,  89. 
Weston  Paper  Co.  v.   Comstock,  293. 
Westropp  V.  Solomon,  545. 
West   Virginia    Trausp.    Co.   v.    Pipe 
Lme  Co.,  281,  376. 


Wetherell  v.  Jay,  437. 

V.  Langston,  382. 
Wetmore  v.  Mell,  15. 
Weyerhauser  v.  Dun,  481. 
Whaley  v.  Hinchman,  83. 
Wharton  v.  McKenzie,  155,  150. 
Wheadon  v.  Olds,  208,  543. 
Wheat  V.  Cross,  26,  31,  34,  469. 

V.  Rice,  356. 
Wheaton  v.  East,  168,  169. 

V.  Wheaton,  207,  226. 
Wheelden  v.  Lyford,  266. 
Wheeler  v.  Baars,  228. 

V.  Dunn,  237. 

V.  Frankenthal,  81,  9a. 

V.  Glasgow,  7. 

V.  Knaggs,  527. 

V.  McGuire,  513,  514. 

V.  Marchbanks,  272. 

V.  Nevins,  500. 

V.  Pounds,  297. 

V.  Railroad  Co.,  22,  418. 

V.  Reed,  520. 

V.  Reynolds,  94. 

V.  Russell,  265. 

V.  Sleigh  Co.,  505. 

V.  Spencer,  276,  339. 

V.  Stewart,  353. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey, 

507. 
Wheelock  v.  Freeman,  16,  480. 
Wheelwright  v.  Wheelwright,  55, 
Whelan  v.  Clock  Co.,  473. 

V.  Cook,  148. 

V.  Sullivan,  86. 
Wheleu  v,  Boyd,  460. 
Whelpdale's  Case,  381. 
Whipple  V.  Foot,  76. 

V.  Parker,  80,  95. 
Whitaker  v.  Burrows,  95. 

V.  Groover,  437. 

V.  Whitaker,  108. 
Whitbeck  v.  Van  Ness,  436. 
Whitcomb  v.  Gilman,  267. 

V.  Hardy,  185. 

V.  Joslyn,  177. 
White  V.  Bank,  340,  341. 

V.  Barber,  278. 

V.  Baxter,  22. 

V.  Bigelow,  73. 

V.  Bluett,  135. 

V.  Buss,  261,  330. 

V.  Codies,  3,  22,  25. 

V.  Cotton  Waste  Corp.,  174. 


C50 


CASES   CITED. 
[The  figures  refer  to  pages.] 


White  V.  Drew,  104. 

V.  Dwyer,  273. 

V.  Farley,  179. 

V.  Foster,  76. 

V.  Fox,  480. 

V.  Hass,  480. 

V.  Hey  1  man,  243. 

V.  Holland,  81. 

V.  Kunts,  133. 

V.  Kuntz,  258. 

V.  Levy,  81. 

V.  Madison,  517. 

V.  Miller,  58. 

V.  Pollock,  54. 

V.  Railroad  Co.,  295. 

V.  Rintoul,  69. 

V.  Ross,  250. 

V.  Skinner,  517. 

V.  Smitli,  405. 

V.  Trumbull,  439. 

V.  Walker,  425. 

V.  Wilson's  Adm'rs,  331. 
White's  Heirs  v.  Prentiss'  Heirs,  370. 
Whitefield  v.  Longfellow,  241,  242. 
Whiteford  v.  Hitchcock,  42. 
Whitehead  v.  Burgess,  356. 

V.  Greetham,  111. 

V.  Potter,  517. 

V.  Tuckett,  514. 
Whitehill  v.  Wilson,  49. 
White  Sewing  Mach.  Co.  v.  Dakin,  482. 
Whiteside  v.  Brawley,  229. 

V.  U.  S.,  145. 
Whitesides  v.  Bank,  480. 

V.  Hunt,  278,  279,  332,  342. 
White    Star    Line    Steamboat   Co.    v. 

Moragne,  56. 
Whiting  V.  Ohlert,  81. 

V.  Price,  229. 
Whitman  v.  Arms  Co.,  368. 
Whitmarsh  v.  Hall,  164,  170,  176. 

V.  Walker,  76. 
Whitney  v.  Bank,  469. 

V.  Boardman,  224. 

V.  Clary,  122. 

T.  Cook,  492. 

V.  Dutch,  154,  162,  167. 

V.  Esson,  400. 

V.  Express  Co.,  509. 

V.  Gammon,  327. 

V.  Hale,  54,  55. 

V.  Kirtlaud,  300. 

V.  Snyder,  198. 

V.  Wyman,  504. 


Whitney  Arms  Co.  v.  Barlow,  193. 
Whittaker,  Ex  parte,  222. 

V.  Improvement  Co.,  236,  244. 
Whittemore  v.  Gibbs,  100. 

V.  Oil  Co.,  381. 
Whittier  v.  Collins,  252. 

V.  Dana,  65. 
Whittin  V.  Fitzwater,  222. 
Whittingham's  Case,  154. 
Whitty  V.  McCarthy,  296. 
Whulton  V,  Hardesty,  215. 
Wibaux  V.  Live  Stock  Co.,  380,  383. 
Wicker  v.  Hoppock,  259. 
Wickes  Bros.   v.   Electric   Light  Co., 

395. 
Wickes'  Lessee  v.  Caulk,  482. 
Wickiser  v.  Cook.  249. 
Wicks  v.  Smith,  236,  238. 
Widman  v.  Gay,  453. 
Widoe  V.  Webb,  323. 
Wieland  v.  Kobick,  177. 
Wier  V.  Batdorf,  91. 
Wiggin  V.  Cumings,  382. 

V.  Goodwin,  426. 
Wiggins   Ferry   Co.    v.   Railroad   Co., 

280,  373. 
Wigglesworth  v.  Dollison,  396i. 

V.  Steers,  187. 
Wight  V.  Riiidskopf,  286. 
Wilbur  V.  Flood,  236. 

V.  Stoepel,  302. 

V.  Warren,  108. 

V.  Wilbur,  354,  355. 
Wilcox  V.  Arnold,  14L 

V.  Cline,  22,  30. 

V.  Daniels,  323. 

V.  Draper,  24. 

V.  Howland,  244,  273. 

V.  University,  218,  230. 

V.  Wood,  396. 
Wilcox  Silver  Plate  Co.  v.  Green,  103. 
Wilde  V.  Wilde,  304. 
Wildey  v.  Collier,  286. 

v.  Crane,  71,  297. 
Wiley  V.  Baumgardner,  59,  312. 

V.  Inhabitants,  466,  468. 

V.  Logan,  508. 
Wilhelm  v.  Eaves,  83,  414. 

v.  Fagan,  83. 

V.  Hardman,  156,  172,  174 

V.  Voss,  72. 
Wilkie  V.  Roosevelt,  272. 
Wilkin  Mfg.  Co.  v.  Lumber  Co.,  28. 
Wilkinson  v.  Byers,  132. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


651 


Wilkinson  v.  Coverdale,  111,  498. 

V.  Heaveuncii,  89. 

V.  Johnson,  482. 

V.  Lindo,  382. 

V.  Scott,  58. 

V.  Slierman,  236. 

V.  Stitt,  277. 

V.  Towsley,  276. 

V.  Williamson,  397. 
Willard  v.  Eastham,  190,  191. 

V.  Tayloe,  33,  491. 

V.  Wood,  354. 
Willcox  V.  Jackson,  187. 
William  Butcher  Steel  Works  v.  At- 
kinson, 79. 
Wm.  Rogers  Mfg.  Co.  v.  Rogers,  490. 
Williams  v.  Bank,  520. 

V.  Barfield,  264. 

V.  Bayley,  293. 

V.  Bemis,  79,  553. 

V.  Bradley,  381. 

V.  Bryan,  274. 

V.  Carpenter,  435. 

V.  Carrington,  133. 

V.  Carwardine,  40. 

V.  Collins,  250. 

V.  Flowers,  273. 

V.  Forbes,  108. 

V.  Fowle,  297. 

V.  Getty,  514. 

V.  Griffith,  438. 

V.  Harrison,  153. 

V.  Hathaway,  137. 

V.  Healey,  452. 

V.  Higgins,  56,  111. 

V.  Inabet,  187. 

V.  Kent,  392. 

V.  Kerr,  225,  236. 

V.  Lake,  84. 

V.  Latham,  54. 

V.  Mitchell,  495,  514. 

V.  Moor,  141. 

V.  Paine,  147. 

V.  Pasquali,  174. 

V,  Paul,  269,  270. 

V.  Railway  Co.,  40. 

V.  Robbins,  520. 

V.  Robinson,  89,  105. 

V.  Schatz,  54. 

V.  Shackelford,  148. 

V.  Sopieha,  181. 

V.  Son-ell,  368. 

V.  Spurr,  215,  221. 

V.  Tiedemann,  331. 


Williams  v.  Wentworth.  181. 

V.  Woods,  90,  512. 
Williams  Mfg.  Co.  v.  Brass  Co.,  433. 
Williamson  v.  Baley,  331, 
V.  Brandenberg,  269. 
V.  Cllne,  478. 
V.  McClure,  404. 
V.  Railroad  Co.,  288. 
William   Wilcox  Mfg.   Co.   v.  Brazos, 

261. 
Willing  V.  Peters,  130,  138. 
Willingham  v.  King,  148. 
Willis  V.  Gammill,  130. 
V.  Terry,  58. 

T.  Twambly,  153,  164,  165,  369. 
Willmering  v.  McGaughey,  402. 
Willoughby  v.  Willoughby,  415. 
Wills  V.  Brown,  71. 
V.  Carpenter,  29. 
Willson  V.  Baltimore,  412. 

V.  Foree,  549. 
Willwerth  t.  Leonard,  182. 
Willy  V.  Robert,  85. 
Wilmot  V.  Lyon,  222. 
Wilson  V.  Barker,  543. 
V.  Bauman,  397. 
Bevans,  70. 

Carpenter's  Adm'r,  22a 
Carson,  367. 
Cooper,  406. 
Darragh,  168. 
Doran,  441. 
Edmonds,  137,  138. 
Gerhardt,  374. 
V.  Guyton,  38. 
V.  Hundlej',  235. 
V.  Insurance  Co.,  206. 
Kilburn,  272. 
McCormick,  380. 
Marlow,  405. 
Martin,  81. 
Milligan,  269. 
Morton,  74. 
Oldham,  179. 
Powers,  126,  392. 
V.  Railway  Co.,  490. 
V.  Roots,  404,  462. 
V.  Strugnell,  339. 
V.  Tumman,  503,  504. 
V.  Wallace,  382. 
V.  White,  222. 
V.  Wilson,  404. 
V.  Winter.  269. 
Wilson's  Assignee  v.  Beam,  426. 


V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


652 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Wilson  S.  M.  Co.  v.  Curry,  244. 
Wilstach  V.  Heyd,  88. 
Wilton  V.  Tazwell,  534. 
Wimer  v.  Smitli,  233. 
Winans  v.  Mfg.  Co.,  110. 
Winberry  v.  Koonce,  367. 
Winch  V.  Ice  Co.,  412. 
Wincliell  v.  Cary,  270. 

V.  Express  Co.,  514. 

V.  Noyes,  549. 
Winchester  v.  Howard,  199,  200,  522. 

V.  Nutter,  276. 
Winchester  Electric  Light  Co.  v.  Veal, 

337. 
Wind  V.  Her,  344. 
Windbiel  v.  Carroll,  543. 
Windell  v.  Hudson,  69. 
Windham  v.  Doles,  419,  420. 
Wiudhill  Local  Board  v.  Vint,  294. 
Windmuller  v.  Pope,  444. 
Wineland  v.  Insurance  Co.,  214. 
Winiield  v.  Dodge,  269,  270. 
Winlield  Nat.  Bank  v.  Croco,  241. 
Wing  V.  Chase,  53. 

V.  Mill,  140. 

V.  Peck,  59. 
Wingate  v.  Neid linger,  435. 
Winn  V.  Bull,  29,  43. 
Winne  v.  Hammond,  516. 
Winnebago  MUls  v.  Travis,  439. 
Winpenny  v.  French,  287. 
Winslow  V.  Railway  Co.,  296. 

V.  Stokes,  493. 
Winston  v.  Young,  226. 
Winter  v.  Coit,  516. 
Winters  v.  Chen-y,  80. 
Winward  v.  Lincoln,  345. 
Wirebach's  Ei'r  v.  Bank,  186. 
Wisconsin,  I.  &  N.  R.  Co.  v.  Braham, 

120. 
Wise  V.  Foote,  247. 

V.  Miller,  24. 
Wislizenus  v.  O'Fallon,  141,  1'^. 
AV' isuer  v.  Bardwell,  323. 
Witbeck  v.  Waine,  58,  478. 
Witherby  v.  Mann,  492. 
Witherow  v.  Witherow,  453. 
Withers  v.  Greene,  469. 

V.  Reynolds,  456. 

V.  Richardson,  72. 
Witte  V.  Fishing  Co.,  193. 

V.  Williams,  483. 
Wittenberg  v.  Mollyncaux,  307. 
Wolcott  V.  Mount,  4G3,  4G7. 


Wolf  V.  Fink,  435. 

V.  Marsh,  448. 

V.  Wolf,  75. 
Wolfe  V.  Home,  515. 

V.  Howes,  477,  550. 

V.  Pugh,  524. 
Wolfe  V.  Campbell,  400. 

V.  Koppel,  71. 
Wolffe  V.  Eberlein,  141. 
Wolford  V.  Powers,  107. 
Wollcott  V.  Heath,  280. 
Wolters  V.  Thomas,  423. 
Wolverton  v.  Davis,  71. 
Womack  v.  Womack,  174. 
Wonsettler  v.  Lee,  96. 
Wood  V.  Allen,  397,  406. 

V.  Bank,  522. 

V.  Boynton,  203. 

V.  Chetwood,  27,  55. 

V.  College,  403. 

V.  Faut,  494. 

V.  Gamble,  493. 

V.  Goodridge,  513. 

V.  Hitchcock,  442. 

V.  Lock  Co.,  19a 

V.  Losey,  158. 

V.  McCain,  503,  513. 

V.  McCann,  285. 

V.  Moriarty,  70,  355,  356,  418,  422* 

V.  New  York,  369. 

V.  Paper  Co.,  413. 

V.  Partridge,  367. 

V.  Roeder,  207. 

V.  Sheldon,  469,  545. 

V.  Steele,  479,  480,  483. 

V.  Whelen,  504. 

V.  Whitehead  Bros.  Co.,  308. 
Woodbridge  v.  De  W^itt,  229. 
Woodbridge  Tp.  v.  Hall,  512,  519. 
Woodburn  v.  Woodbm-n,  121. 
Woodbury  v.  Woodbury,  247,  249. 
Wooddy  V.  Insurance  Co.,  63. 
Wooden  v.  Shotwell,  333. 
Woodham  v.  Allen,  293,  340, 
Woodland  v.  Newhall's  Adm'r,  354. 
Woodle  V.  Whitney,  463. 
Woodman  v.  Davis,  510. 

V.  Segar,  389. 
Wood  Reaping  &  Mowing  Mach.  Co. 

V.  Smith,  433. 
Woodruff  V.  Dobbins,  424. 

V.  Hinman.  323. 

V.  Railroad  Co.,  505, 

V.  Scuiie,  69. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


653 


Woods  V.  Roberts,  249. 

Woodson  V.  BaiTett,  3G9. 

Woodstock  Iron  Ck).  v.  Extension  Co., 

257,  288. 
Woodward  v.  Washburn,  350. 
Woodworth  v.  Anderson,  481. 

V.  Bank,  4S0. 
Wooldridge  v.  Hancock,  94. 

V.  Stern,  79. 
Wooley  V.  Drew,  251. 
Woolner  v.  Hill,  449. 
Woo  tan  V.  Hasket,  276. 
Wooten  V.  Hinkle,  258. 

V.  Walters,  454. 

V.  Wilcox,  71. 
Worden  v.  Sharp,  81. 
Work  V.  Cowhick,  88. 
Workman  v.  Campbell,  285. 

V.  Wright,  503. 
Work's  Appeal,  242. 
Worley  v.  Sipe,  77,  121. 
Wornock  v.  Loar,  158. 
Worrall  v.  Muun,  500,  501. 
Worrell  v.  Forsyth,  393. 
Worth  V.  Case,  112. 

V.  Patton,  95. 
Worthington,  In  re,  284. 

V.  Beeman,  45. 

V.  Worthington,  180. 
Worthy  v.  Jones,  79. 
Wright  V.  Bank,  180. 

V.  Brown,  222. 

V.  Crabbs,  315,  331. 

V.  Davenport,  464,  469. 

V.  Dickinson,  545. 

V.  Graham,  147. 

V.  Herrick,  526. 

V.  Hughes,  194. 

V.  Leonard,  189. 

V.  McCampbell,  476. 

V.  Remington,  245. 

V.  Rindskopf,  294. 

V.  Ryder,  308. 

V.  Terry,  356. 

V.  Waller,  187. 

V.  Wright,  114,  180. 
Wristen  v.  Bowles,  28. 
Wroth  V.  Johnson,  276,  291. 
Wulschner  v.  Ward,  426. 
Wunderle  v.  Wunderle,  147. 
WyaBt  V.  Lesher,  301. 
Wyckoff  V.  Mickle,  90. 
Wyeth  V.  W^alzl,  236- 


Wyley  v.  Bull,  17. 
Wyman  v.  Wiuslow,  442. 
Wynkoop  v.  Cowing,  462. 
W.  &  H.  M.  Gouldiug  v.  Hammond' 36, 
37. 


Xeno3  V.  Wickham,  32,  54. 


Yale  V.  Dederer,  191. 

V.  Flanders,  53. 
Yates  V.  Been,  179. 

V.  Donaldson,  381,  534. 

V.  Foot,  383. 

V.  Robertson,  264. 

V.  Valentine,  492. 

V.  Yates,  514. 
Yates'  Adm'rs  v.  Hollingsworth,  141. 
Yazoo  &  M.  V.  R.  Co.  v.  Fulton,  492. 
Yeager  v.  Musgrave,  482. 

V.  Yeager,  393. 
Yeager   Milling   Co.    v.   Lawler,   222, 

225. 
Yellow  Poplar  Lumber  Co.  v.  Rule,  79. 
Yellowstone  Kit  v.  State,  281. 
Yerring^on  v.  Green,  551. 

V.  Greene,  378,  476. 
YoDoski  V.  State,  267. 
York  V.  EQnkle,  244. 

V.  Orton,  423. 
York  &  M.  Line  R.  Co.  v.  Winans,  288. 
Youn  V.  Lament,  187. 
Young  V.  Adams,  435. 

V.  Arntze,  236,  237. 

V.  Cole,  545. 

V.  Dake,  81. 

V.  Daniels,  409,  410. 

V.  Herman,  17. 

V.  Hill,  273. 

V.  McKee,  171. 

V.  Paul,  188. 

V.  Stevens,  180,  183. 

V.  Thomson,  293. 

V.  Wheeler,  75. 

V.  Young,  226. 
Young  Bros.  Mach.  Co.  v.  Young,  466. 
Younge  v.  Guilbeau,  53. 
Young  Men's  Christian  Ass'n  v.  Oi'oft, 

357. 
Youngs  V.  Public  Schools,  .358, 
Young's  Estate,  In  re,  17. 


654 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Zabrislde  v.  Railroad  Co.,  369,  467. 

V.  Smith,  365. 

V.  Woodruff,  149. 
Zacharie  v.  Franklin,  89. 
Zaleski  v.  Clark,  432. 
Zeigler  v.  Hughes.  217,  248,  249. 
Zell  V.  Insurance  Co.,  63. 
Zell  Guano  Co.  v.  Emry,  257. 
Zeltner  v.  Irwin,  42. 


Zetterlund  v.  Coal  Co.,  364. 
Ziegler  v.  McFarland,  393. 
Zimmerman  v.  Brown,  33. 

V.  Zimmerman,  18. 
Zimmler  v.  Water  Co.,  58. 
Zoebisch  v.  Von  Minden,  125. 
Zouch  V.  Parsons,  152-154,  16f. 
Zuck  V.  McClure,  444. 
Zucker  v.  Karpeles,  221. 
Zundel  v.  Gess,  147. 


INDEX. 


[the  figures  refer  to  pages.] 


A 

ABANDONMENT  OF  CONTRACT, 

by  mutual  consent,  418. 

by  one  party,  breach,  444. 

contract  created  by  law  after,  549,  552. 

of  wife  by  husband,  authority  of  wife  to  bind  husband,  499,  548. 

ABSOLUTE  PROMISES, 
what  are,  450. 

ABUSE  OF  PROCESS, 
see  "Duress." 

ACCEPTANCE, 

see  "Frauds,  Statute  of"  ;   "Offer.'* 
forms  of,  14. 

communication  by  conduct,  15. 
necessity  for,  21. 
contracts  by  correspondence,  25. 
necessity  for  communication  of,  22-27. 
must  be  absolute,  27. 

and  identical  with  terms  of  offer,  27. 
manner  of,  30. 
place  of,  30. 
time  of,  30. 

after  lapse  of  offer,  36. 
when  complete,  22. 

loss  or  delay  of  letter  or  telegram,  25. 
effect  of.  21. 

by  one  of  several  parties,  revocation  of  offer,  31. 
of  offer  to  the  public  generally,  39. 
of  deed,  53. 
of  goods  sold,  101. 

ACCIDENT, 

see  "Mistake." 
act  of  God,  428. 

alteration  of  instrument  by,  4S2. 
inherent  defects  in  property  carried  by  carrier,  428. 

ACCORD  AND  SATISFACTION, 
discharge  by,  491. 
consideration,  122,  124,  132,  491. 

Clabk  Cont.  (655) 


656  INDEX. 

[The  figures  refer  to  pages.] 

ACQUIESCENCE, 

see  "Ratification." 
acceptance  by,  IG. 

ratification  of  infant's  contract  by,  169. 
in  breach  of  condition,  4GU. 

ACTION, 

who  may  sue  and  be  sued,  see  "Operation  of  Contract" ;   "Quasi  Contract" 
remedies  on  breach  of  contract,  484. 
damages,  485. 
specific  performance,  489. 
injunction,  490. 

discharge  of  right  of  action,  491. 
by  consent  of  parties,  49L. 
I'elease,  491. 

accord  and  satisfaction,  491. 
by  judgment,  493. 

lapse  of  time,  statute  of  limitations,  495. 
champerty  and  maintenance,  296. 
by  or  against  United  States,  145. 

foreign  states  or  sovereigns,  146. 
aliens,  147. 
convicts,  148. 
married  women,  191. 
by  attorney  for  services,  149. 
against  agent  on  contract  of  named  principal,  517. 

ACT  OF  GOD, 

effect,  428. 

ADMINISTRATOR, 

see  "Executors  and  Administrators.' 

ADVERTISEMENT, 
offers  by,  38,  41. 
acceptance  and  revocation  of  ofCer,  39. 

AFFECTION, 

as  a  consideration,  108. 

AFFIRMANCE, 

see  "Ratification." 

AGENCY, 

in  general,  497. 
distinguished  from  sale,  98. 
creation  of  the  relation,  497. 

capacity  of  the  parties,  154,  497. 

how  the  relation  may  arise,  498. 

gratuitous  agency,  498. 

agency  of  necessity,  499. 

agency  quasi  ex  contractu,  499. 

partnership,  499. 

ratification  of  unauthorized  acts,  502. 

ratification  of  contract  made  by  corporate  agent,  192. 

form  of  authority,  500. 

necessity  for  seal,  500. 

necessity  for  writing,  84,  90,  500. 

Implied  authority,  estoppel  by  conduct,  501,  514,  526. 


INDEX.  657 

[The  figures  refer  to  pages.] 

AGENCY— Continued. 

effect  of  the  relation,  507. 

rights  and  liabilities  of  principal  and  agent  inter  se,  507. 
duties  of  principal,  508. 
duties  of  agent,  508. 
fraud  and  breach  of  trust,  508. 
delegation  of  authority  by  agent,  510. 
rights  and  liabilities  as  to  third  persons,  512.  ~^v^^^ 

where  principal  is  named,  512. 
general  and  special  agents,  513. 
extent  of  agent's  authority,  512. 
auctioneers,  515. 
factors,  515. 
brokers,  51C. 
del  credere  agent,  516. 
rights  and  liabilities  of  agent,  516. 
contracts  under  seal,  517. 
foreign  principal,  517. 

contracts  in  excess  of  authority  or  without  authority,  517. 
warranty  of  authority,  518. 
name  of  principal  undisclosed,  519. 
existence  of  principal  undisclosed,  521. 
fraud  of  agent,  523. 
husband  as  wife's  agent,  501. 
wife  as  husband's  agent,  501. 

to  purchase  necessaries,  499,  547. 
child  as  parent's  agent,  501. 
servant  as  master's  agent,  501. 
determination  of  the  relation,  524. 
by  agreement,  525. 
by  act  of  parties,  525. 
by  operation  of  law,  527. 
unlawful  agreements  by  agent,  301. 

rights  of  factors,  brokers,  and  other  agents,  341. 
authority  to  bind  government,  145. 
creation  of  contractual  relations  through  agents,  348. 

AGREEMENT. 

see  "Acceptance" ;   "Mistake" ;  "Offer" ;  "Reality  of  Consent" ;  ""Par- 
ties  to  Contracts." 
defined,  2. 
essentials,  2-4. 

concurrence  of  agreement  and  obligation,  &-9. 
revocation  of  agency  by,  525. 

ALIENS, 

who  are,  146. 

power  to  contract,  146. 

alien  enemies,  147,  290. 
actions  by  or  against,  147. 

ALTERATION, 

of  contract  by  substituted  agreement,  420. 
consideration,  12,  419. 
statute  of  frauds,  G5,  426. 

Clakk  Cont.(2d  Ed.) — 42 


658  INDEX. 

[The  figures  refer  to  pages.] 

ALTERATION— Continued. 

of  instrument  as  a  discharge,  479. 

by  whom,  482. 

intent,  482. 

consent,  483. 
of  law,  as  a  discharge,  474. 

as  bearing  on  legality  of  agreement,  346. 
filling  blanks  in  deed,  56. 

APPLICATION, 

of  payments,  437. 

APPRENTICES, 

death  of  master,  378. 

ARBITRATION, 

provisions  for,  legality,  294. 

ARMY, 

enlistment  by  infant,  151. 

ASSAULT  AND  BATTERY, 
agreement  to  commit,  256. 

ASSIGNMENT  OF  CONTRACT, 
in  general,  348,  359. 
of  liabilities  by  act  of  party,  360. 
of  rights  by  act  of  party,  at  law,  361. 
novation,  361. 

recognition  of  equitable  assignment  at  law,  363. 
equitable  assignment,  363. 
what  is  assignable,  364. 
partial  assignment,  366. 
form  of  assignment,  366. 
notice  of  assignment,  367. 
title  of  assignee,  equities  and  defenses,  368. 
priority  between  assignees,  370. 
under  statutes,  370. 
customs  of  the  law  merchant,  371. 

bills  of  exchange  and  promissory  notes,  371. 
by  operation  of  law,  372. 

of  obligations  on  transfer  of  interests  in  land,  372. 
by  marriage,  377. 
by  death,  377. 
by  bankruptcy,  372. 
of  patent  or  copyright,  64. 
of  salary  or  pension  by  officer,  284. 

ASSIGNMENTS, 

voluntary  assignments  by  Infant,  151. 

ATTORNEYS, 

power  to  contract,  149,  264. 
champerty  and  maintenance,  296. 
undue  influence  over  client,  249. 

AUCTION  SALES, 
advertisement,  41. 
auctioneer  as  agent  of  the  parties,  515. 

for  making  memorandum  to  satisfy  statute  of  fraud"?,  90 


INDEX.  659 

[The  figures  refer  to  pages.] 

AUCTION  SALES— Continued 

as  contracts  within  statute  of  frauds,  98. 
efifect  of  fraud,  258. 

AUTHORITY, 

see  "Agency." 

AVOIDANCE, 

see  "Discharge  of  Contract";  "Drunken  Person";  "Duress";  "Fraud'"; 
"Infants"  ;  "Insane  Persons" ;  "Misrepresentation" ;  "Mistake" ;  "lie- 
scission"  ;  "Undue  Influence." 


B 

BAILMENT, 

see  "Carriers." 
gratuitous,  111. 

BANKRUPTCY, 

frauds  on  creditors,  257. 

assignment  by,  372. 

as  a  discharge  of  contract,  484. 

as  revocation  of  agency,  527. 

promise  to  pay  debt  after  discharge  in  bankruptcy,  140. 

BASTARDS, 

bond  for  support  by  infant,  151. 

BENEFITS, 

see  "Quasi  Contract." 
acceptance  of,  as  affecting  right  to  rescind  for  fraud,  236. 

BETS, 

see  "Unlawful  Agreements." 

BIDDING, 

see  "Auction  Sales," 

BILLS  AND  NOTES, 

necessity  for  written  form,  63. 

for  acceptance  of  bill,  63. 
consideration,  111. 
execution  on  Sunday,  268. 
transfer,  371. 

bona  fide  purchasers,  335. 

of  notes  of  drunken  persons,  187. 
discharge  by  agreement,  419. 
waiver  of  discharge,  140. 
rescission  for  fraud,  239. 
alteration,  479. 
usury,  270. 

effect  of  illegality,  334. 
payment  of  check  by  mistake,  544. 
payment  by,  435. 

BILLS  OF  LADING, 

implied  conditions,  428. 


660  INDEX. 

[The  figures  refer  to  pages.] 

BLANKS, 

see  "Alteration." 
execution  of  deed  in  blank,  56. 

BOND, 

see  "Contracts  under  Seal." 
defined,  51. 

delivery  in  escrow,  55. 
assignment,  371. 
alteration,  481. 

BOOKS, 

entries  in,  as  memoranda  required  by  statute  of  frauds,  83. 

BOYCOTTS, 

see  "Unlawful  Agreements." 

BREACH  OF  CONTRACT, 
see  "Impossibility." 
as  a  discharge,  443. 
forms  of  breach,  443. 
renunciation  of  contract,  444. 

impossibility  of  performance  created  by  act  of  party,  448. 
failure  of  performance,  449. 

whether  promise  is  dependent  or  independent,  450 
absolute  promises,  450. 
divisible  promises,  453. 
subsidiary  promises,  457. 

condition  and  warranty  distinguished,  209,  465. 
conditional  promises,  in  general,  458. 
breach  of  concurrent  condition,  459. 
breach  of  condition  precedent,  459. 
caused  by  other  party,  468. 
suspensory  conditions,  459. 
failure  of  consideration,  468. 
executed  consideration,  471. 
executory  contracts  of  sale,  462. 
executed  contracts  of  sale,  464. 
condition  precedent  in  narrower  sense,  464. 
waiver  or  acquiescence  in  breach  of  condition,  466. 
remedies  on  breach,  484. 

recovery  of  money  paid,  471. 
damages,  485. 
specific  performance,  489. 
injunction,  490. 

discharge  of  right  of  action,  491, 
by  consent  of  parties,  491. 
release,  491. 

accord  and  satisfaction,  491. 
by  judgment,  493. 

by  lapse  of  time,  statute  of  limitations,  495. 
liability  of  third  person  for  inducing  breach,  349. 

BREACH  OF  MARRIAGE  PROMISE, 

death  after  breach,  action  by  executor,  378. 
damages,  487. 


INDEX.  fiUl 

[The  figures  refer  to  pages.] 

BRIBERY, 

see  "Unlawful  Agreements." 

BROKER, 

see  "Agency." 
defined,  516. 


CANCELLATION, 

see  "Discharge  of  Contract." 

CAPACITY  OF  PARTIES,       • 
see  "Parties  to  Contracts." 

CARRIERS, 

unlawful  agreements  by.  In  general,  288. 

limiting  liability,  319. 
conditions  implied  in  contract,  428. 

CAVEAT  EMPTOR, 
see  "Fraud." 

CERTAINTY, 

as  to  parties,  4. 

as  to  rights  and  liabilities,  5. 

discussed,  43. 

id  certum  est  quod  certum  reddi  potest,  44. 

sufficiency  of  memorandum,  statute  of  frauds,  82,  104. 

vague  promise,  no  consideration,  135. 

CHAMPERTY  AND  MAINTENANCE, 
validity  of  agreements,  296. 

CHANGE, 

see  "Alteration." 

CHARITIES, 

legality  of  Sunday  contract  as  work  of  charity,  267. 

CHOSES  IN  ACTION, 

see  "Assignment  of  Contract." 

CLASSIFICATION, 
of  contracts,  47-61. 

COMBINATIONS, 

see  "Unlawful  Agreements." 

COMMUNICATION, 
of  intention,  3. 
of  offer,  necessity,  18. 

by  conduct,  15. 

terms  of  offer  partly  uncommunicated.  19. 
of  acceptance,  22-27. 
of  revocation  of  offer,  33. 

COMPOSITION  WITH  CREDITORS, 
consideration,  133. 
effect  of  fraud,  257. 

COMPOUNDING  CRIME, 

validity  of  agreements,  293. 


662  INDEX. 

[The  figures  refer  to  pages.] 
COMPOUND  INTEREST, 
usury,  272. 

COMPROMISES, 

see  "Composition  with  Creditors." 
consideration,  122,  124,  132,  133. 

COMPULSION, 
see  "Duress." 

CONCEALMENT, 

see  "Fraud." 

CONCURRENT  CONDITIONS, 
see  "Conditions." 

CONDITIONS, 

see  "Breacli  of  Contract" ;   "Impossibility." 
as  effecting  mutuality,  117,  119. 
distinguislied  from  warranties,  209,  465. 

from  misrepresentation,  209. 
whether  promises  are  dependent  or  independent,  450. 
conditional  promises,  in  general,  458. 
conditions  subsequent,  427. 
concurrent  conditions,  459. 
conditions  precedent,  459. 

suspensory  conditions,  459. 

vital  conditions,  461. 

executory  contracts  of  sale,  462. 

executed  contracts  of  sale,  464. 

narrower  sense  of  condition  precedent,  464. 
waiver  or  acquiescence  in  breach  of  condition,  466. 
conditional  acceptance,  lapse  of  offer,  36. 
delivery  of  deed  in  escrow,  55. 
precedent  to  rescission  of  contract  for  fraud,  237. 
agreements  for  arbitration  before  action  on  contract,  295. 
conditional  payment  by  negotiable  or  nonnegotiable  instrument,  435. 

CONDUCT, 

see  "Agency";   "Estoppel";   "Fraud." 
communication  by,  15-18. 
■  acceptance  by,  22-27. 

CONFIDENTIAL  RELATIONS, 

see  "Agency"  ;   "Fraud" ;   "Misrepresentation"  ;   "Undue  Influence." 

CONFLICT  OF  LAWS, 
statute  of  frauds,  97. 
legality  of  contract,  342. 

CONSENT, 

see  "Agreement." 
reality  of,  195. 

to  alteration  of  instrument,  483. 
discharge  of  right  of  action  by,  491. 

CONSIDERATION, 

see  "Unlawful  Agreements" ;   "Discharge  of  Contract." 
defined  and  explained,  47,  106. 
"valuable,"  distinguished  from  "good,"  108. 


INDEX.  C03 

[The  figures  refer  to  pages.] 

CONSIDERATION— Continued. 

distinguished  from  motive,  107,  108. 
necessity  for,  in  general,  110. 

negotiable  instruments,  111. 

contracts  under  seal,  59. 
presumption  of.  111,  112. 
adequacy,  112. 

in  equity,  115. 
sufficiency  or  reality,  116. 
mutual  promises,  117. 
voluntary  subscriptions,  118. 
contingent  and  conditional  promises,  119. 
forbearance  to  exercise  a  right,  121. 

compromises,  124. 

time  of  forbearance,  123. 

to  do  what  one  cannot  legally  do,  123. 
gratuitous  bailment,  111. 
gratuitous  employment,  111, 
gratuitous  agency,  498. 
natural  affection,  108. 
moral  obligation,  108,  138. 
Impossible  promises,  134. 
vague  promises,  135. 
doing  or  promising  what  one  is  bound  to  do,  126. 

mutual  discharge  and  substituted  agreement,  2. 

promise  to  third  person  to  perform  existing  contract,  129, 

part  payment  in  satisfaction  of  debt,  129-133. 
gift  of  residue,  130. 
release  of  residue  under  seal,  130. 
consideration  for  release  of  residue,  131. 

accord  and  satisfaction,  132. 

compromise,  132. 

composition  with  creditors,  133. 
legality,  136. 
partial  illegality,  321. 
in  respect  of  time,  136. 

executory  and  executed,  14,  136. 

past  consideration,  136. 
failure  of,  468. 

executed,  471. 

recovery  of  money  paid,  544. 
expression  in  memorandum,  statute  of  frauds,  86,  104. 
not  necessary  for  ratification  of  infant's  contract,  107. 
return  of,  on  avoidance  of  contract,  by  infant,  171. 

by  insane  person,  185. 

by  drunken  person,  187. 

for  fraud,  237. 
for  discharge  of  unliquidated  claim,  132. 
for  discharge  of  contract,  419. 

CONSPIRACY, 

unlawful  agreements,  256. 

CONSTRUCTION. 

see  "Interpretation  of  Contract." 


664  INDEX. 

[The  figures  reler  to  pagoa.] 
CONTINGENT  FEES, 

champertous  agreements,  298. 

CONTRACT, 

see  specific  heads, 
defined,  1. 

executory  and  executed,  1. 
as  a  legal  conception,  2-12. 
agreement,  2-4. 
obligation,  5,  6. 

concurrence  of  agreement  and  obligation,  5-9. 
promise,  9, 10. 
essentials,  12. 
classification,  47-61. 

void,  voidable,  and  unenforceable,  10,  11, 
reduction  to  writing,  43. 

CONTRACTS  OP  RECORD, 
defined,  49. 
quasi  contract,  8,  494,  530. 

CONTRACTS  UNDER  SEAL, 
in  general,  51. 

terms,  "deed,"  "bond,"  "specialty,"  and  "covenant,"  6L 
how  made,  51. 

delivery  and  acceptance,  53. 
necessity  for  acceptance,  20. 
revocation  of  offer,  32. 
escrow,  51,  55. 
execution  in  blank,  56. 
deed  poll  and  indenture,  57. 
characteristics,  57. 

estoppel,  57. 

merger  of  simple  contract,  58,  478. 

limitation  of  actions,  59. 

as  dispensing  with  necessity  for  consideration.  58. 
want  of  consideration,  effect  in  equity,  60. 
when  necessary,  61. 
use  of  seal  by  corporation,  192, 
communication  of  offer,  20. 
proof  of,  387,  388. 
release  under  seal,  130. 
form  of  discharge  by  agreement,  424. 
action  by  third  person,  358. 
by  agent,  necessity  for  authority  under  seal,  500. 

ratification  of  contract  under  seal,  500. 

liability  of  agent,  517. 

CONTRIBUTION, 

between  joint  debtors,  384,  534.- 
between  co-sureties,  384,  534. 
between  tort  feasors,  535. 

CONVEYANCES, 

see  "Contracts  under  Seal." 
necessity  of  deed,  61. 


INDEX.  665 

[The  figures  refer  to  pages.] 

CONVEYANCES— Continued. 

necessity  for  written  form,  64. 
not  a  contract,  7. 

CONVICTS, 

power  to  contract,  148. 

effect  of  conviction  of  husband  on  right  of  married  woman  to  contract,  189. 

COPYRIGHT, 

assignment,  64. 

CORNERING  THE  MARKET, 
validity  of  combinations,  315. 

CORPORATIONS, 

capacity  to  contract,  191. 

what  contracts  are  authorized,  193. 

ultra  vires  contracts,  193. 

mode  of  contracting,  seal,  61,  192. 

implied  contracts,  192. 

ratification  of  contracts,  192,  504. 

records  of,  as  memorandum  required  by  statute  of  frauds,  8S. 

misrepresentations  in  sale  of  shares,  216. 

unlawful  agreements  by  officers  of,  301. 

CORRESPONDENCE, 

revocation  of  offer  by,  33. 
acceptance  of  contract  by,  25. 
payment  by  mail,  435. 

COURTS, 

agreements  ousting  jurisdiction,  294. 

COVENANT, 

see  "Contracts  under  Seal." 
defined,  51. 
running  with  the  land,  372. 

COVERTURE, 

see  "Married  Women." 

CRIME, 

agreements  to  commit,  256. 
compounding,  293. 

CRIMINALS, 

see  "Convicts." 

CROPS, 

sale  of,  statute  of  frauds,  75,  101. 

CUSTOM  AND  USAGE, 
evidence  of,  396. 

to  add  a  term,  396. 
to  explain  terms,  396. 
requisites  of,  397. 

D 

DAMAGES, 

for  breach  of  contract,  485. 

remote  and  proximate,  486. 


666  INDEX. 

[The  figures  refer  to  pages.] 

DAMAGES— Continued. 

vindictive,  punitive,  or  exemplary,  487. 
assessment  by  parties,  488. 
speculative  profits,  488. 
penalty  or  liquidated  damages,  411. 

DEATH, 

of  party  before  acceptance  of  offer,  lapse,  37. 

of  parties  after  delivery  of  deed  in  escrow,  55. 

of  infant,  avoidance  of  contract  by  heirs,  162. 

of  joint  promisor,  381. 

of  joint  promisee,  382. 

assignment  by,  377. 

as  discharge  of  contract,  476. 

as  revocation  of  agency,  528. 

DECEIT, 

see  "Fraud." 

DEED, 

see  "Contracts  under  Seal." 
contracts  under  seal,  51. 
deed  poll  and  indenture,  57. 
execution  in  blank,  56. 
delivery,  53. 

escrow,  55. 

statute  of  frauds,  91. 
alteration,  479. 

revocation  before  acceptance,  32. 
for  conveyance  of  land,  64. 
parol  evidence,  391. 
estoppel  by,  57. 

DEFAULT, 

see  "Discharge  of  Contract." 

DEFINITENESS, 
see  "Certainty." 

DELAY, 

see  "Laches." 

DEL  CREDERE  AGENT, 
defined,  516. 

DELEGATION, 

of  authority  by  agent,  510. 

DELICT, 

see  "Tort." 

DELIVERY, 
of  deed,  53. 

of  written  contract,  91. 
of  Sunday  contract,  268. 
of  goods  under  statute  of  frauds,  lOL 
assignment  by  delivery,  371. 
parol  evidence,  301. 


INDEX.  6U7 

[Tho  figures  refer  to  pages.] 

DELUSION, 

see  "Insane  Persons." 

DEMENTIA, 

see  "Insane  Persons." 

DEPENDENT  PROMISES, 
see  "Conditions." 

DETERMINATION  OF  CONTRACT, 

see  "Agency"  ;   "Discharge  of  Contract." 

DISABILITIES, 

see  "Limitation  of  Actions" ;   "Parties  to  Contracts." 

DISAFFIRMANCE, 
see  "Rescission." 

DISCHARGE  OF  CONTRACT, 

see  "Accord  and  Satisfaction." 
in  general,  417. 
by  agreement,418. 

waiver,  cancellation,  or  rescission,  418. 
substituted  agreement,  127,  420. 
change  of  terms,  420. 
novation,  420. 
form  of  discharge  by  agreement,  424. 

provisions  for  discharge  contained  in  contract,  conditions  subsequent, 
427. 
nonfulfillment  of  term,  427. 
occurrence  of  specified  event,  428. 
act  of  God,  428. 
perils  of  the  sea,  428. 
discharge  optional  with  notice,  429. 
by  performance,  430. 
payment,  4.34. 

by  negotiable  or  nonnegotiable  paper,  435. 
application  of  payments,  437. 
tender.  440. 
by  breach,  443. 

breach  caused  by  other  party,  468. 

forms  of  breach,  443. 

renunciation  of  contract,  444. 

impossibility  of  performance  created  by  act  of  party,  448. 

failure  of  performance,  449. 

dependent  or  independent  promises,  450. 
absolute  promises,  450. 
divisible  promises,  453. 
subsidiary  promises,  457. 

condition  and  warranty  distinguished,  209,  465.. 
conditional  promises  in  general,  458. 
breach  of  concurrent  condition,  459. 
breach  of  condition  precedent,  459. 
suspensory  conditions,  459. 
vital  conditions.  461. 
failure  of  consideration,  408. 


608  INDEX. 

[The  figures  refer  to  pages.] 

DISCHARGE  OF  CONTRACT— Continued. 

executory  contracts  of  sale,  462. 
executed  consideration,  471. 
executed  contracts  of  sale,  464. 
conditions  precedent  in  narrower  sense,  464. 
waiver  or  acquiescence  in  breach  of  condition,  460* 
by  impossibility  of  performance  in  general,  472. 
performance  prevented  by  other  party,   477. 
change  in  the  law,  474. 
destruction  of  the  subject-matter,  475. 
Incapacity  for  personal  services,  476. 
by  operation  of  law,  478. 
merger,  478. 

alteration  of  written  instrument,  479. 
by  whom,  482. 
intent.  482. 
consent,  483. 
loss  of  instrument,  484. 

bankruptcy,  484.  * 

remedies  on  breach  of  contract,  484. 
recovery  of  money  paid,  471. 
damages,  485. 
specific  performance,  489. 
injunction,  490. 
discharge  of  right  of  action,  491. 

by  consent  of  parties,  release,  491. 

accord  and  satisfaction,  491. 
by  judgment,  493. 

lapse  of  time,  statute  of  limitations,  495. 
discharge  of  surety,  385. 
effect  of  war,  147. 

DIVISIBLE  CONTRACTS, 

see  "Indivisible  Contracts." 
what  are,  453. 
effect  of  illegality,  324. 
breach,  453. 

DIVORCE, 

agreements  to  facilitate,  304. 

DRUNKEN  PERSONS, 

see  "Insane  Persons."  , 

capacity  to  contract,  186. 
contracts  created  by  law,  187. 
contracts  for  necessaries,  187,  547. 
effect  of  being  under  guardianship,  180. 
ratification  and  avoidance  of  contract,  186. 

return  of  consideration,  187. 

avoidance  as  against  third  persons,  187. 

DURESS, 

see  "Undue  Influence." 
in  general,  240. 
effect,  240,  246. 
per  minas,  241. 


INDEX.  6C9 

[The  figures  refer  to  pages.] 

DURESS— Continued. 

of  miprisonment,  242. 

of  goods,  243. 

against  wiiom,  244. 

by  wliom,  245. 

refusal  to  perform  contract,  2. 

recovery  of  money  paid  under  duress,  540. 


EASEMENT, 

statute  of  frauds,  76. 

ELECTION  OF  REMEDIES, 
waiver  of  tort,  538,  549. 

ELECTIONS, 

agreements  tending  to  impair  Integrity  of,  290. 

ENEMIES, 

see  "Aliens." 

ENLISTMENT, 
by  infant,  151. 

EQUITABLE  ASSIGNMENT, 
see  "Assignment  of  Contract." 

EQUITY, 

adequacy  of  consideration,  115. 

necessity  for  consideration,  contract  under  seal,  60. 

part  performance  of  contract,  statute  of  frauds,  92. 

compelling  execution  of  writing,  95. 

enjoining  breach,  490. 

specific  performance,  489. 

remedies  for  mistake,  207. 

effect  of  fraud  of  infant,  177. 

separate  estate  of  married  woman,  100. 

equitable  estoppel  by  representation,  218. 

equitable  assignments,  363-370, 

extrinsic  evidence  as  to  interpretation  of  contracts,  400. 

ESCROW, 

defined  and  discussed,  55. 

parol  evidence,  391. 

delivery  of  deed,  statute  of  frauds,  91. 

ESTOPPEL, 

see  "Laches." 
by  deed,  57. 
by  judgment,  49,  493. 
by  misrepresentations,  218. 
of  infant,  177. 
of  married  woman,  189. 
agency  by,  501,  514,  526. 

EVIDENCE, 

see  "Interpretation  of  Contract." 
parol  evidence,  statute  of  frauds,  82-90. 


670  INDEX. 

[The  figures  refer  to  pages.] 

EVIDENCE— Continued. 

presumption  of  consideration,  111,  112. 

Interpretation  of  contracts,  38G-401. 

agreements  for  suppression  of,  292. 
EXECUTED  CONTRACT, 

defined,  1. 

not  within  statute  of  frauds,  65. 

the  term  criticised,  7. 

of  infant,  152. 

EXECUTORS  AND  ADMINISTRATORS, 

acceptance  of  offer  on  behalf  of  estate,  37. 
promise  to  answer  for  debts  of  estate,  6G. 
avoidance  of  contract  of  insane  person  by,  184. 

EXECUTORY  CONTRACT, 

defined,  1. 
EXEMPTION, 

from  liability  for  negligence,  318. 

F 

FACTOR, 

see  "Agency." 
defined,  515. 

FAILURE  OF  CONSIDERATION, 

see  "Consideration." 

FALSE  REPRESENTATIONS, 

see  "Fraud" ;    "Misrepresentations." 

FIDUCIARY   RELATIONS, 

see  "Agency";   "Undue  Influence";   "Unlawful  Agreements." 

FOOD, 

regulations  as  to  sales  of  food  products,  264. 

FORBEARANCE, 

see  "Consideration." 

FOREIGNERS, 

see  "Aliens." 

FOREIGN  STATES  AND  SOVEREIGNS, 
capacity  to  contract,  146. 
actions  by  and  against,  146. 

FORM, 

see  "Contracts  of  Record" ;   "Contracts  under  Sell" ;   "Frauds,  Stat- 
ute of." 
defined,  47. 
necessity,  47. 

classification  of  contracts,  47. 
of  discharge  of  contract  by  agreement,  424. 

FRAUD, 

see  "Duress"  ;    "Misrepresentation" ;    "Quasi  Contract" ;    "Undue  In- 
fluence" ;    "Unlawful  Agreements." 
In  general,   220. 
distinguished  from  misrepresentation,  209. 


INDEX.  671 

[The  figures  refer  to  pages.] 

FRAUD— Continued. 

distinguished  from  illegality,  259. 
what  constitutes,  220. 

necessity  for  representation  of  fact,  220. 
nondisclosure  of  facts,  220. 
intention  not  to  fulfill  promise,  221. 
concealment  of  facts,  222. 
silence,  223. 
character  of  representation,  224. 

statement  of  opinion  or  expectation,  224. 
statement  of  intention  or  promise,  225. 
misrepresentation  of  law,  226. 
materiality,  226. 
right  to  rely  on  statements,  226. 
caveat  emptor,  223,  226. 

credulity  and  negligence  of  party  defrauded,  228. 
knowledge  of  falsity,  recklessness,  229. 
intention,  230. 
dishonesty  of  motive,  232. 
representation  must  deceive,  232. 
injury  must  result,  233. 
of  officer  of  corporation,  301. 
of  agent,  301,  523. 

in  contracting  without  authority,  518. 
avoidance  of  contract,  523. 
of  infant,  177. 
of  married  woman,  189. 
on  creditors,  257. 
effect,  234. 

remedies  of  party  defrauded,  234. 
on  affirmance,  235. 
on  rescission,  235. 
limitations  to  right  to  rescind,  delay.  236. 

acting  on  contract  after  knowledge  of  fraud,  236. 
return  of  consideration,  and  placing  in  statu  quo,  237. 
as  against  third  persons,  238. 
recovery  of  money  obtained  by  fraud,  540. 
waiver  of  tort,  and  suit  in  assumpsit,  540,  549. 
money  received  without  fraud,  541. 

FRAUDS,  STATUTE  OF, 
the  English  statute,  64. 

quasi  contracts,  or  contracts  created  by  law,  64. 

Instruments  created   under,   and   deriving  obligation   from,   special  stat- 
utes, 65. 
executed  contracts,  65. 
promise  by  executor  or  administrator,  66. 

promise  to  answer  for  debt,  default,  or  miscarriage  of  another,  66. 
agreements  in  consideration  of  marriage,  72. 
agreements  relating  to  land,  73. 
agreements  not  to  be  performed  within  a  year,  77. 

part  performance,  80. 
form  required  by  section  4.  memorandum,  82. 
showing  as  to  agreement,  84. 


672  INDEX. 

[The  figures  refer  to  pages.] 

FRAUDS,  STATUTE  OF— Continued, 

as  to  pai-ties,  8-4. 

as  to  terms,  85. 

as  to  subject-matter,  86. 

as  to  consideration,  86. 

separate  papers,  87. 

signature,  88. 

by  agent,  90,  500. 

parol  ratification,  506. 

delivery,  91. 
effect  of  noncompliance  with  section  4,  91. 

part  performance  as  taking  contract  out  of  statute,  73,  80,  92,  101,  552. 
recovery  on  Implied  contract  for  part  performance,  95. 
conflict  of  laws,  97. 
parol  contract  as  a  defense,  96. 
•     who  may  plead  the  statute,  96. 
waiver  of  statute,  9G. 
sales  of  goods,  etc.,  seventeenth  section.  97. 

meaning  of  "goods,  wares,  and  merchandises,"  IOC 

value,  99. 

work  and  labor,  99. 

acceptance  and  receipt,  101. 

earnest  and  part  payment,  104. 
form  required  by  section  17,  104. 
effect  of  noncompliance  with  section   17,  105. 

FUTURES, 

unlawful  intent  on  one  side,  331. 


G 

GAMING, 

validity  of  contracts,  275. 

insurance,  277. 

premiums  oT  purses,  277. 

futures,  278. 

loan  to  pay  gambling  debt,  330. 

GIFT, 

not  a  contract,  7. 

of  residue  on  part  payment  of  debt,  130. 

GOVERNMENT, 

see  "States" ;    "United  States." 
validity  of  agreements  affecting,  289. 

GRATUITOUS  AGENCY, 

in  general,  498. 

GRATUITOUS  PROMISES, 

see  "Consideration";   "Contracts  under  SeaL** 
necessity  of  seal,  61. 
effect  of  seal,  59. 

GUARANTY, 

acceptance  of  offer,  24. 

statute  of  frauds,  66. 

memorandum  required  by  statute  of  frauds,  84. 


INDEX.  673 

[The  figures  refer  to  pages.] 
GUARDIAN  AND  WARD, 

avoidance  of  contract  of  insane  person  by  guardian,  184. 
contracts  by  drunl^en  person  under  guardianship,  187. 
contracts  between,  undue  influence,  249. 

H 

IIUSRAND  AND  WIFE, 

see  "Marriage"  ;    "Married  Women." 
assignment  of  contract  by  marriage,  377. 
antenuptial  debts  of  wife,  infant  liusband's  liability,  151. 
liability  for  necessaries  furnisbod  to  wife  or  child  of  infant,  158. 
contracts  of  married  women,  188. 
wife  as  husband's  agent,  501. 

to  purchase  necessaries.  499,  547. 

revocation  of  agency,  52G. 
husband  as  wife's  agent,  501. 
agreements  in  derogation  of  marriage  relation,  302-304. 


IDIOTS, 

see  "Insane  Persons." 

IGNORANCE, 

see  "Mistake." 
of  offer  or  acceptance,  18-27. 
of  public  offer,  performance  of  services,  39. 
of  terms  and  conditions  of  offer,  19. 
of  insanity  of  party  to  contract,  183. 

ILLEGALITY, 

see  "Unlawful  Agreements." 

IMMORAL   AGREEMENTS, 
see  "Unlawful  Agreements." 

IMPLIED   CONTRACTS, 

see  "Quasi  Contract." 
the  term  e.xplaiued,  IG,  530. 
formation  by  conduct,  15-18. 
distinguished  from  quasi  contract,  530. 
when  conti-act  implied  in  fact,  15-18. 

relationship  of  parties,  17. 

from  part  perfox*mance  of  contract  within  statute  of  frauds,  95,  552. 
of  corporation,  192. 
discharge  of  contract  by  occurrence  of  implied  conditions,  428. 

IMPOSSIBILITY, 

meaning  of  term,  134. 
impossible  promise,  no  consideration,  134. 
created  by  act  of  party,  as  a  breach,  448. 
as  a  discharge  of  contract,  472. 

change  in  the  law,  474. 

destruction  of  subject-matter,  475. 

incapacity  for  personal  services,  476. 

Clark  Cont.(2d  Ed.) — 43 


674  INDEX. 

[The  figures  refer  to  pages.] 
IMPRISONMENT, 

see  "Duress." 

IMPROVEMENTS, 

effect  under  statute  of  frauds,  93. 

INCOMPLETE  NEGOTIATIONS, 
are  not  contract,  42. 

INDENTURE, 

defined,  57. 

INDEPENDENT  PROMISES, 

see  "Conditions." 

whether  promises  dependent  or  independent,  450. 

INDIVISIBLE  CONTRACTS, 

see  "Divisible  Contracts." 
what  are,  453. 
effect  of  illegality,  322. 
breach,  453. 

INFANTS, 

who  are,  150. 

capacity  to  contract,  149. 

appointment  of  agent,  154- 
effect  of  emancipation,  150. 
removal  of  disabilities,  150. 
the  old  doctrine  as  to  effect  of  conti'acts,  150. 
valid  contracts,  151. 

liability  for  wife's  antenuptial  debts,  151. 
under  authority  or  direction  of  statute,  151. 
doing  what  could  have  been  compelled,  152. 
executed  contracts,  152. 
contracts  for  necessaries,  rules  stated,  155. 
what  are  necessaries,  155. 
must  concern  his  person,  157. 
money,  158. 

necessaries  furnished  wife  and  children,  158. 
persons  supplying  Infant  act  at  their  peril,  159. 
question  of  law  or  fact,  159. 
express  contract  and  securities,  159. 
quasi  contract,  548. 
void  contracts,  153. 
voidable  contracts,  153. 

ratification  and  avoidance  of  contract,  160. 
ratification,  140. 
cannot  ratify  act  of  agent,  505. 
when  disaffirmance  necessary,  160. 
when  ratification  necessary,  161. 
who  may  avoid  contract,  privilege  personal,  102. 
time  of  avoidance,  164. 
delay  in  avoiding,  104. 
what  amounts  to  ratification,  166. 
implied  ratification,  1G6. 
necessity  for  writing,  63,  KiO. 
what  amounts  to  disaflirmance,  170. 


INDEX.  675 

[The  figures  refer  to  pages.] 
INFANTS— Continued. 

implied  disaffirmance,    170. 
extent  of  ratification  or  disaffirmance,  171. 
return  of  consideration,  171. 
effect  of  ratification,  175. 
effect  of  disaffirmance,  175. 
as  against  tliird  persons,  175. 
torts  In  connection  witti  contracts,  176. 
emi)loyment  in  violation  of  statute,  264. 

INJUNCTION, 

against  breach  of  contract,  490. 

INSANE  PERSONS, 

capacity  to  contract,  178. 

contracts  created  by  law,  181. 

effect  of  contracts,  180. 

contracts  as  void  or  voidable,  181.  • 

contracts  for  necessaries,  181,  547. 

effect  of  Inquisition  and  adjudication  of  lunacy,  182. 

Ignorance  and  good  faith  of  the  other  party,  183. 

ratification , and  avoidance  of  contract,  184. 

personal  privilege  as  to  avoidance,  184. 

return  of  consideration,  185. 

avoidance  as  against  third  persons,  185. 
Insanity  before  acceptance  of  offer,  lapse  of  offer,  37. 
mental  weakness,  undue  influence,  251. 
revocation  of  agency  by  insanity,  528. 

INSOLVENCY, 

promise  to  pay  debt  after  discharge  in  Insolvency,  140. 
frauds  on  creditors,  257. 

INSURANCE, 

form,  writing,  63. 
misrepresentations,  213. 
Insurable  interest,  277. 
wagering  contracts,  275,  277. 

INTENTION, 

see  "Acceptance";  "Alteration";  "Fraud";  "Mistake";  "Offer";  "Un- 
lawful Agreements." 
must  be  expressed,  3. 
must  be  distinct  and  common,  3. 
must  be  communicated,  3. 
legal  relations  must  be  contemplated,  40. 
Invitations  to  deal,  41. 
offers  in  jest,  41. 
fraudulent,  230. 
usurious,  274. 

sales  for  future  delivery,  278. 

fraudulent  representations  as  to  matters  of  intention,  225. 
alteration  of  instrument,  482. 

INTEREST, 
usury,  270. 
alteration  as  to,  481. 


076  INDEX. 

[The  figures  refer  to  pages.) 
INTEREST— Continued. 

insurable  interest,  277. 

revocation  of  agency  coupled  with  interest,  527,  529. 

INTERPRETATION  OF  CONTRACTS, 
in  general,  386. 

rules  relating  to  evidence,  in  general,  386. 
parol  evidence,  386. 
province  of  court  and  jury,  387. 
difference  between  formal  and  simple  contracts,  388. 
proof  of  document,  388. 

contracts  under  seal,  388. 
simple  contracts,  389. 
evidence  as  to  fact  and  validity  of  agreement,  390. 
as  to  terms  of  agreement,  392. 

proof  of  supplementary  or  collateral  terms,  393. 
explanation  of  terms,  394. 
evidence  of  custom  or  usage,  396. 
to  add  a  term,  396. 
to  explain  terms,  390, 
requisites  of  custom  or  usage,  397. 
evidence  as  to  terms  in  equity,  400, 
rules  of  construction,  in  general,  402. 

terms  implied,  unexpressed  intention,  407. 
rules  as  to  time,  408. 
penalty  or  liquidated  damages,  411. 
joint  and  several  contracts,  415. 
liabilities,  415. 
subscriptions,  415. 
rights,  416. 

INTOXICATING  LIQUORS, 

sales  in  violation  of  statute,  265. 

INTOXICATION. 

see  "Drunken  Persons." 

INVITATIONS  TO  DEAL, 

distinguished  from  offers,  41. 


J 

JEST, 

offer  In  jest,  41. 

JOINT  AND  SEVERAL  CONTRACTS, 

see  "Interpretation  of  Contract" ;    "Operation  of  Contract' 

JOKE, 

offer  in  jest,  41. 

JUDGMENTS, 

as  constituting  contract,  8,  49,  530. 
estoppel  by,  49.  493. 
merger  of  cause  of  action,  50,  493. 
remedies  on,  50. 


INDEX.  677 

IThe  figures  refer  to  pages.) 


K 

KNOWLEDGE, 

of  revocation  of  offer,  33. 

of  public  offer,  performance  of  services,  40. 

of  falsity  of  representations,  229. 

L 

LACHES, 

in  avoiding  contract  of  infant,  164. 

of  Insane  person,  184. 

of  drunken  person,  186. 

on  the  ground  of  mistake,  20S. 

on  the  gi-ound  of  fraud,  236. 

on  the  gi'ound  of  duress,  246. 

on  the  ground  of  undue  influence,  252. 
acquiescence  in  breach  of  contract,  466. 
discharging  right  of  action,  495. 

LANDLORD  AND  TENANT, 

statute  of  frauds,  73,  81. 

lease  in  violation  of  statute,  265. 

covenants  affecting  leasehold  iBterests,  873. 

LAPSE, 

of  offer,  36-38. 

LEASE, 

see  "Landlord  and  Tenant." 

LEGALITY, 

see  "Unlawful  Agreements." 

LEGAL  RELATIONS, 

agreement  must  refer  to,  4,  6,  40. 
offer  must  be  capable  of  creating,  40. 

LETTERS, 

acceptance  by  posting  letter,  25. 

as  memoranda  required  by  statute  of  frauds,  83. 

LEX  LOCI  AND  LEX  FORI, 

see  "Conflict  of  Laws." 

LIBEL  AND  SLANDER, 

unlawful  agreements,  256,  259. 

LICENSE, 

statute  of  frauds,  176. 
failure  to  procure,  264. 

LIMITATION  OF  ACTIONS, 
in  general,  495. 

disabilities  and  exceptions,  495. 
acknowledgment  and  new  promise,  141,  49S. 

writing,  63. 
part  payment.  496. 
on  contracts.  59. 


678  INDEX. 

[The  egures  refer  to  pages.] 

LIMITING  LIABILITY, 
for  negligence,  318. 

LIQUIDATED  DAMAGES, 
or  penalty,  411. 

LOANS, 

usury,  270. 

for  Illegal  purposes,  330. 

LOBBYING   CONTRACTS, 

validity,  285. 

LOCUS  PCENITENTIiE, 

see  "Unlawful  Agreements." 

LOSS, 

of  Instrument,  484. 

LOTTERIES, 
validity,  280. 

LOVE  AND  AFFECTION, 
as  a  consideration,  108. 

LUNATICS, 

see  "Insane  Persons." 

M 

MAIL, 

acceptance  of  contract  by,  25. 

death  of  proposer  after  acceptance,  37. 
payment  by  mail,  435. 

MAINTENANCE, 

validity  of  contracts,  296,  297. 

MARRIAGE, 

see  "Husband  and  Wife" ;   "Married  Women." 
not  a  contract,  7,  9. 
assignment  by,  377. 
marriage  brocage  contracts,  302. 
agreements  in  consideration  of,  statute  of  frauds,  72. 

part  performance,  73. 
promise  to  marry,  statute  of  frauds,  72,  81. 

consideration,  117. 

by  married  person,  304,  note. 
as  a  consideration,   116. 
agreements  in  restraint  of,  302. 
as  revocation  of  agency,  528. 

MARRIED  WOMEN, 

see  "Husband  and  Wife." 
capacity  to  contract,  188. 

at  common  law,  189. 

in  equity,  190. 
torts  in  connection  with  contract,  189. 
equitable  separate  estate,  190. 
common  law  changed  by  statute,  191. 
promises  during  coverture,  ratification,  141. 


INDEX.  679 

[The  figures  refer  to  pages.] 
MASTER  AND  SERVANT, 

see  "Agency." 
contract  for  services,  statute  of  frauds,  81. 

specific  performance,  490. 
discbarge  of  contract  of  employment,  428,  429. 

by  breacb,  444. 

by  deatb  or  illness,  476. 
enticing  away  servant,  349. 
servant  as  master's  agent,  501. 
employment  of  infants,  264. 
limiting  master's  liability  for  negligence,  318. 
combinations  between  employes,  316. 
combinations  between  employers,  318. 

MAXIMS, 

id  certum  est  quod  certum  reddi  potest,  44. 
ex  dolo  malo  non  oritur  actio,  336. 

MEASURE  OF  DAMAGES, 

see  "Damages." 
MEMORANDUM, 

required  by  statute  of  frauds,  82,  104. 

MENTAL  INCAPACITY, 

see  "Drunlien  Persons"  ;   "Infants"  ;   "Insane  Persons." 

MERGER, 

of  cause  of  action  in  judgment,  50,  493. 

of  simple  contract  in  contract  under  seal,  58,  478. 

MINORS, 

see  "Infants." 

MISREPRESENTATION, 

see  "Fraud." 
in  general,  208. 

wbnt  amounts  to  a  representation,  219. 
distinguished  from  fraud,  209. 

from  conditions  and  warranties,  209. 
effect.  209,  213. 
confidential  relations,  216. 
contracts  of  suretyship,  217. 
effect  in  equity,  217. 
estoppel  by,  218. 
contracts  of  insurance,  213. 
contracts  for  the  sale  of  land,  215. 
contracts  to  purchase  shares  in  companies,  216. 
by  infants,  176. 
by  married  women,  189. 

MISTAKE, 

see  "Fraud" ;    "Misrepresentation." 
in  general,  196. 

as  to  nature  of  transaction,  196. 
as  to  person  with  whom  contract  is  made,  199. 
as  to  subject-matter  of  contract,  200. 

existence  of  subject-matter,  201. 

identity  of  subject-matter,  202. 


680  INDEX. 

[The  figures  refer  to  pages.] 
MISTAKE— Continued. 

nature  and  essential  qualities  of  subject-matter,  202. 

as  to  quantity,  204. 

as  to  price,  204. 
as  to  nature  of  promise  known  to  the  other  party,  204. 
of  law,  206. 
effect,  207. 
remedies,  207. 
unlawful  agreements,  mistake  of  fact,  326. 

mistake  of  law,  325. 
effect  on  ratification  of  agent's  acts,  o05. 
alteration  of  instrument,  482. 
payment  under,  542. 
avoidance  of  contract  as  to  third  persons,  197. 

MODIFICATION, 
see  "Alteration." 

MONEY  PAID, 
recovery,  533. 

MONET  RECEIVED, 
recovery,  530-547. 

MONOPOLIES, 

validity  of  combinations,  312-318. 

MORALITY, 

see  "Unlawful  Agreements." 

MORAL  OBLIGATION, 

as  consideration,  108,  138,  301. 

MOTIVE, 

distinguished  from  consideration,  107. 

in  making  fraudulent  representations,  232. 

MUNICIPAL   CORPORATIONS. 

resolution  of  city  council  as  memorandum  required  by  statute  of  frauds, 
83. 

MUTUALITY, 

necessity,  117,  119. 

MUTUAL  PROMISES, 
consideration,   117. 

N 

NECESSARIES, 

see  "Agency";  "Drunken  Persons";  "Infants";  "Insane  Persons";  "Quasi 
Contract." 

NEGLIGENCE, 

see  "Laches." 
limiting  liability,  318. 
of  party  defrauded.  197.  228. 

in  receiving  counterfeit  ivA9h  as  payment,  435,  note, 
of  agent,  .508. 

NEGOTIABLE  INSTRUMENTS, 
see  "Bills  and  Notes." 


INDEX.  6S1 

LThe  figures  refer  to  pages.] 
NON  COMPOS  MENTIS, 
see  "Insane  Persons." 

NOTICE. 

of  offer,  18. 

of  acceptance,  22-27. 

of  revocation  of  offer,  33. 

of  agent's  authority,  526', 
of  assignment.  yUT, 

priority,  370. 
of  happening  of  condition,  4^Hi. 

NOVATION, 

what  constitutes,  362,  420. 

NUDUM  PACTUM, 

see  "Consideration" ;    "Promise." 

0 

OBLIGATION, 

see  "Quasi  Contract." 
defined,  5. 
essentials,  5,  6. 
sources  of,  8,  9. 
concurrence  of  agreement  and  obligation,  5-9, 

OBSTRUCTING  JUSTICE, 
validity  of  agreements,  292. 

OFFER, 

see  "Acceptance." 
forms  of,  13-15, 

communication  by  conduct,  15-18. 
necessity  for  communication,  18-20. 
terms  partly  uncommunicated,  19. 
revocation  of,  31-3G. 

communication  of  revocation,  33. 

agreement  to  keep  offer  open,  33,  119. 
lapse  of,  3&-38. 
to  the  public  generally,  38. 

acceptance  and  revocation,  39. 
as  referring  to  legal  relations,  40. 

must  be  definite  and  certain,  43. 

made  in  jest,  41. 

distinguished  from  invitations  to  deal,  41 

incomplete  negotiations,  41. 

OFFICE  AND  OFFICER, 

traffic  in  public  offices,  282. 

agreements  affecting  compensation  of  officers,  283 

assignment  of  salary  or  pension  of  officer,  284. 

corruption  of  public  officers,  286. 

lobbying  contracts,  285. 

OPERATION  OF  CONTRACT, 

see  "Agency" ;    "Assignment  of  Contract'* 
In  general,  347. 


682  INDEX. 

[The  figures  refer  to  pages.] 
OPERATION  OF  CONTRACT— Continued, 
limits  of  contractual  relation,  347. 
agency,  348. 
assignment,  348. 

imposing  liability  on  third  persons,  349. 
imposing  duty  on  third  persons  not  to  interfere,  349. 
conferring  rights  on  third  persons,  351. 

promise  for  benefit  of  third  person,  352. 
action  by  third  party  for  many  joint  contractors,  358. 
Joint  and  several  contracts,  379. 
joint  contracts,  379. 
release,  381,  382. 
survivorship,  381,  382. 
several  contracts,  383. 
survivorship,  383. 
contracts  both  joint  and  several,  384. 

survivorship,  384. 
contribution  between  joint  debtors,  384. 
assignment  of  rights  and  liabilities,  359-378. 

OPINION, 

representations  as  to  matters  of  opinion,  224. 

OPTIONS, 

revocation,    33. 
consideration,  mutuality,  119. 
to  terminate  contract,  429. 

ORAL  CONTRACTS, 

see  "Acceptance";    "Frauds,   Statute  of";    "Interpretation  of  Con- 
tract";  "OfCer." 
classification,  47. 

P 

PAR  DELICTUM, 

see  "Unlawful  Agreements." 

PARENT  AND  CHILD, 
undue  influence,  248. 
child  as  parent's  agent,  501. 
agreements  in  derogation  of  y  arental  relation,  305. 

PAROL  CONTRACTS, 

defined,  48. 
classification,  47. 

PAROL  EVIDENCE, 

see  "Interpretation  of  Contract." 
interpretation  of  contract,  3SG-401. 

PARTIES  TO  CONTRACTS, 

see  "Drunlien  Persons";  "Infants";  "Insane  Persons";  "Operation  ol 
Contract." 
two  parties  necessary,  3,  5. 
signature,  statute  of  frauds,  88,  90. 
showing  as  to,  statute  of  frauds,  84. 
mistake  as  to  identity  of  party,  199. 
must  be  definite,  4. 


INDEX.  683 

[The  figures  refer  to  pages.] 

PARTIES  TO  CONTRACTS— Continued, 
joint  and  several  liability,  379,  415. 
capacity  to  contract,  in  general,  45,  143. 

political  status,  states  and  United  States,  144. 
foreign  states  and  sovereigns,  146. 
aliens,  146. 
alien  enemies,  147. 
convicts,  148. 
professional  status,  149. 
Infants,  149-178. 
insane  persons,  178-180. 
drunken  persons,  186-188. 
married  wonen,  188. 
corporations,  191. 
to  appoint  agent.  497. 
to  act  as  agent,  497. 
limits  of  contractual  relations,  347. 
imposing  liability  on  third  persons,  349. 
conferring  rights  on  third  persons,  351-359. 
assignment  of  rights  and  liabilities,  359-378. 
consent  to  alteration,  483. 

PARTNERSHIP, 

see  "Agency." 
statute  of  frauds,  75,  98. 
avoidance  of  contract  of,  by  infant,  165. 
agency  of  partners,  499. 
dissolution  before  acceptance  of  offer  by,  37, 

PART  PAYMENT, 

to  take  contract  out  of  statute  of  frauds,  92,  104. 
in  satisfaction  of  debt,  129-133. 
after  limitations,  496. 

PART  PERFORMANCE, 

see  "Discharge  of  Contract" ,    "Quasi  Contract" ;   "Frauds,  Statute  of." 

PAST  CONSIDERATION, 

discussed,  136. 

PATENTS  FOR  INVENTIONS, 

assignment,  64. 
monopolies  under,  315. 

PAYMENT, 

see  "Assignment  of  Contract." 
what  constitutes,  434. 
by  negotiable  or  nonnegotiable  paper,  435. 
application  of  payments,  437. 
presumption  of,  495. 
part  payment  in  satisfaction  of  debt,  129-133. 

after  limitations,  4Wk 
as  taking  contract  out  of  statute  of  frauds,  92,  104. 
tender,  440. 
recovery  of  money  paid  for  use  of  another,  533. 

on  failure  of  consideration,  471. 

voluntary  payments,  541. 

recovery  of  money  received  for  use  of  another,  536. 


^84  INDEX. 

[The  figures  refer  to  pages.] 
PENALTY, 

or  liquidated  damages,  411. 
distinguished  from  usury,  272. 
sale  without  license,  265. 

PENSIONS, 

assignment,  284. 

PERFORMANCE. 

see  "Discharge  of  Contract" ;   "Frauds.  Statute  of.'* 
suit  for  specific  performance,  489. 
acceptance  of  contract  by  performance,  22-25.  39. 
part  performance,  549,  552. 

PERILS  OF  THE  SEA. 
effect,  428. 

PERJURY, 

contract  to  procure  false  testimony,  292. 

PHYSICIAN, 

power  to  contract,  149,  264. 

PLACE, 

of  acceptance,  30. 

POLICE  POWER, 

prohibiting  unlawful  agreements,  259. 

POLLICITATION, 
defined,  2L 

POSSESSION, 

effect  under  statute  of  frauds,  92. 
as  evidence  of  delivery  of  deed,  55. 

POWERS, 

of  attorney,  500. 

PREMIUM, 

offer  of,  legality,  277. 

PRESUMPTION, 

as  to  delivery  of  deed,  55. 
of  consideration,  111.  112. 
of  undue  influence,  250. 

PRIEST  AND  PARISHIONER. 

undue  influence,  249. 

PRINCIPAL  AND  AGENT. 

see  "Agency." 

PRINCIPAL  AND  SURETY, 
see  "Suretyship." 

PRIORITIES, 

between  assignees,  370. 

PRIVILEGE, 

personal  privilege  to  avoid  contract,  Infants,  162. 
insane  persons,  Ib-i. 


INDEX.  685 

LTbe  figures  refer  to  pages.] 
PROMISE, 
dofinod,  9. 
essentials,  9,  10. 

as  consideration  for  promise,  117. 
fraudulent,  2'2.j. 

new  promise  to  pay  debt  after  discbarge  in  bankruptcy,  140- 
after  bar  by  limitations,  496. 

PROOF, 

see  "Interpretation  of  Contract." 

PROPOSAL, 

see   "Offer." 

PUBLIC  POLICY, 

see  "Unlawful  Agreements." 


Q 

QUANTUM  MERUIT, 

see  "Quasi  Contract," 

QUASI  CONTRACT, 

in  general,  8,  530. 

judgments,  494,  530. 

obligation  imposed  by  statute,  531. 

money  paid  for  the  use  of  another,  533, 

money  received  for  the  use  of  another,  536. 

debts  arising  from  tort,  waiver  of  tort,  538. 

money  obtained  by  fraud  or  duress,  540. 
liability  of  third  persons,  541. 
money  obtained  without  fraud  or  wrong,  541. 

voluntary  payment,  541. 

money  paid  under  mistake,  542. 

failure  of  consideration,  544. 

money  paid  under  illegal  agreement,  546. 
recovery  for  benefits  conferred,  quantum  meruit,  547. 

liability  for  necessaries,  547,  159. 

forcing  benefit  upon  another,  548. 

benefits  rendered  gratuitously,  549. 

goods  wrongfully  obtained,  waiver  of  tort,  549. 

part  performance  of  contract,  549. 

retaining  benefits,  .551. 

part  performance  of  illegal  contract,  .552. 

part  performance  of  unenforceable  or  void  contract,  552. 

on  rescission  of  contract,  553. 
agency  quasi  ex  contractu,  499. 

part  performance  of  contract  within  the  statute  of  frauds,  95. 
liability  of  corporation,  receipt  of  benefit  under  ultra  vires  contract,  192- 

194. 
liability  of  infants,  151,  159. 
liability  of  insane  persons,  181. 
liability  of  drunken  person,  187. 
statute  of  frauds  not  applicable,  64. 


68G  INDEX. 

[The  figures  refer  to  pages.] 

R 

RAILROAD  COMPANIES, 

unlawful  agreements,  288. 

limiting  liability  for  negligence,  319. 

RATIFICATION, 

see  "Drunken  Persons";    "Duress";    "Fraud";    "Infants";    "Insane 
Persons." 
consideration,    140. 
agency  by,  502. 

after  knowledge  of  fraud,  235. 
of  contract  of  married  woman,  141. 

of  infant,  160. 

of  insane  person,  184-186. 

of  drunken  person,  186. 
of  Sunday  contract,  269. 
of  alteration,  483. 

REALITY  OF  CONSENT, 

see   "Duress";   "Fraud";   "Misrepresentation";    "Mistake";   "Undue 
Influence." 
In  general,  195. 

RECOGNIZANCE, 
defined,  50. 
as  a  contract  of  record,  50. 

RECORDS, 

see  "Contracts  of  Record." 

REFORMATION, 
of  contract,  208. 

REFUSALS, 

agreement  to  keep  proposal  open,  revocation,  33. 
consideration,  mutuality,  119. 

RELEASE, 

see  "Accord  and  Satisfaction";  "Composition  with  Creditors";  "Com- 
promise" ;    "Discbarge  of  Contract" ;    "Payment." 
on  part  payment,  129-133. 
of  joint  debtor,  381. 
as  against  joint  creditor,  382. 
of  right  of  action,  491. 

REMEDIES, 

see    "Action";    "Agency";    "Duress";    "Equity";     "Fraud";    "Mistake"; 
"Quasi  Contract." 

RENUNCIATION, 

see  "Breach  of  Contract." 

REPRESENTATIONS, 

see  "Fraud" ;  "Misrepresentation." 

RESCISSION, 

see  "Discharge  of  Contract";  "Drunken  Persons";  "Duress"; 
"Fraud";  "Infants";  "Insane  Persons";  "Mistake";  "Revocation"; 
"Undue  Influence." 


INDEX.  687 

[The  figures  refer  to  pages.] 
RESCISSION— Continued, 
on  ground  of  fraud,  235. 
because  of  other's  unlawful  purpose,  332. 
recovery  for  part  performance,  553. 
contract  to  rescind,  not  within  statute  of  frauds,  98. 

RES  JUDICATA, 
see  "Judgment." 

RESTRAINT  OF  MARRIAGE, 

agreements  unlawful,  302. 

RESTRAINT  OF  TRADE, 

validity  of  agreements,  305-312. 
consideration,  GO. 
reasonableness,  305. 
unlimited  as  to  space,  308. 
unlimited  as  to  time,  309. 
sale  of  secret  process,  311. 
monopolies,  312-318. 

RETURN  OF  CONSIDERATION, 
see  "Consideration." 

REVIVAL, 

of  debt  discharged  by  bankruptcy,  140. 
of  debt  barred  by  limitations,  496. 

REVOCATION, 
of  offer,  31-36. 

communication,  33. 

to  the  piiblic  generally,  39. 

agreement  to  keep  offer  open,  33. 
of  agency,  524. 

REWARD, 

offer  of,  38. 

acceptance,  23,  39. 

revocation,  39. 

legality,  277. 
recovery  by  public  oificer,  283. 

RIGHT  OF  WAY, 

statute  of  frauds,  76. 

s 

SALES, 

see  "Conditions";  "Fraud";  "Frauds,   Statute  of;  "Misrepresentation"; 
"Mistake";  "Quasi  Contract";  "Warranty." 

SATISFACTION, 

see  "Accord  and  Satisfaction" ;  "Composition  with  Creditors" :  "Compro- 
mise" ;  "Discharge  of  Contract" ;   "Payment" ;  "Release." 

SEAL, 

see  "Contract  under  Seal." 
defined,  52. 
necessity  on  deeds,  52. 
adding  or  effacing,  480. 


688  INDEX. 

[The  figures  refer  to  pages.] 
SEAL^Continued. 

use  of  by  corporation,  192. 

authority  of  agent  under  seal,  500. 

SEPAirATE  ESTATE, 

of  married  woman,  190. 

SEPARATION  AGREEMENTS, 
validity,  303. 

SERVICES, 

contract  for,  statute  of  frauds,  81. 

distinguished  from  sale,  99. 
gratuitous  employment.  111. 
employment  of  infants,  264. 
specific  performance  of  contract  for,  490. 
discharge  of  contract  for,  428,  429. 

by  breach,  444. 

by  renunciation,  444. 

by  death  or  illness,  470. 
promise  to  pay  for  past  services,  138. 
acceptance  of  contract  by  perforinance  of,  24. 
acceptance  of  services  performed,  41. 

SEVERABLE  CONTRACTS, 

see  "Divisible  Contracts"  ;  "Indivisible  Ooutracts." 

SEVERAL  CONTRACTS, 

see  "Operation  of  Contract." 

SICKNESS, 

discharge  of  contract  by,  476. 

SIGNATURE, 

statute  of  frauds,  88,  90. 

SIMPLE   CONTRACTS, 
classification,  47. 
defined,  48. 

interpretation,  388,  389. 
merger  in  contract  under  seal,  58. 
limitation  of  actions,  59. 

SPECIALTY, 

see  "Contracts  under  Seal." 
defined,  51. 

SPECIFIC  PERFORMANCE, 
in  general,  489. 
contract  with  infant,  163. 
mistake,  208. 

SPENDTHRIFT, 

capacity  to  contract,  187. 

STATES, 

power  to  contract,  144. 
construction  of  contracts  with,  145 
actions  by  or  against,  145. 

STATUTE  OF  FRAUDS, 
see  "Frauds,  Statute  of." 


INDEX.  689 

[The  figures  refer  to  pages.] 
STATUTE  OF  LIMITATIONS, 
see  "Limitation  of  Actions." 

STOCK  SPECULATION, 

see  "Unlawful  Agreements." 

STRIKES, 

see  "Unlawful  Agreements." 

SUBSCRIPTIONS, 

consideration,  118. 

joint  or  several  liability,  415. 

SUBSIDIARY  PROMISES, 

see  "Conditions";    "Warranty." 
what  are,  209,  457. 
breach,  457. 

SUBSTITUTED  AGREEMENT, 
consideration,  127. 
as  dischai'ge  of  contract,  420. 

SUIT, 

see  "Action." 

SUNDAY  LAWS, 

legality  of  contract,  265-270. 

SURETYSHIP, 

statute  of  frauds,  66. 
misrepresentation,  217. 
right  of  surety  against  principal,  384. 
contribution  between  cosureties,  384. 

SUSPENSORY  CONDITIONS, 
in  general,  459. 

T 

TELEGRAMS, 

as  memoranda  required  by  statute  of  frauds,  83b 
acceptance  of  contract  by  telegraph,  27. 

TELEGRAPH  COMPANIES, 
limiting  liability,  320. 

TENDER, 

what  constitutes,  440. 

effect.  440. 
TERMINATION  OF  CONTRACT, 

see  "Agency"  ;   "Discharge  of  Contract." 

THIRD  PERSONS, 

see  "Operation  of  Contract." 
avoidance  of  contract  as  against,  by  infant,  175. 

by  insane  person,  185. 

by  drunken  person,  187. 

for  want  or  failure  of  consideration,  111. 

for  fraud,  etc.,  238. 

for  mistake,  197. 
right  to  avoid  contract  with  infant,  162. 

insane  persons,  184. 

for  duress,  245. 

ClarkCont.(2d  Ed.) — 44 


G90  INDEX. 

[The  figures  refer  to  pages.] 
THIRD  PERSONS— Continued. 

liability  for  inducing  breach  of  contract,  349. 

receipt  of  money  or  property  by,  implied  contract,  541. 

TIME, 

of  acceptance,  30. 

lapse  of  offer,  36. 
for  performance  of  contract,  433. 
for  avoidance  of  contract  of  infant,  1G4. 

of  insane  person,  184. 

of  drunken  person,  187. 

for  mistake,  208. 
rules  as  to,  time  of  essence,  408. 

TORT, 

see  "Unlawful  Agreements." 
distinguished  from  contract,  18. 

of  married  woman  in  connection  with  contracts,  189. 
of  infant  in  connection  with  contract,  176. 
waiver  and  suit  in  assumpsit,  538,  549. 

TRADE  SECRETS, 
sale  of,  311. 

TRUSTS, 

not  contract,  7. 

undue  influence  over  cestui  que  trust,  249. 


u 

UNCERTAINTY, 

see  "Certainty." 

UNDISCLOSED  AGENCY, 
name  of  principal,  519. 
existence  of  principal,  521. 

UNDUE  INFLUENCE, 

see  "Duress" ;   "Fraud." 
In  general,  24G. 
effect,  246,  252. 

presumption  from  circumstances,  247. 
relationship  of  parties,  248. 

parental  and  quasi  parental  relation,  248. 

other  family  relations,  248. 

fiduciary  relations,  249. 

other  confidential  relations,  249. 
continuance  of  presumption,  250. 
mental  weakness,  251. 

personal  influence  absent,  advantage  taken  of  another's  weakness  and  dis- 
tress, 251. 

UNENFORCEABLE, 

meaning  of  term,  10. 

UNITED  STATES, 

power  to  contract,  144. 
actions  by  or  against,  145. 
construction  of  contracts  with,  145. 


INDEX.  691 

[The  figures  refer  to  pages.] 
UNLAWFUL  AGREEMENTS, 
in  general,  254. 
classification,  255. 

agreements  in  violation  of  positive  law,  255. 
breach  of  express  rules  of  common  law,  256. 
involving  commission  of  crime,  256. 
to  commit  civil  wrong,  25G. 

frauds  on  creditors,  257. 

fraud  in  connection  with  auction  sales,  258. 

publication  of  libel,  250. 
breach  of  statute,  powers  of  legislature,  259. 
the  prohibition  by  statute,  2G0. 
mala  in  se  and  mala  prohibita,  260. 
effect  of  penalty,  261. 
omission  of  penalty,  262. 

doing  indirectly  what  cannot  be  done  directly,  262. 
agreements  prohibited  but  declared  not  void,  262. 
agreements  simply  void  and  unenforceable,  263. 
regulating  trade,  profession,  or  business,  263. 
necessity  of  license,  264. 
traffic  in  intoxicating  liquors,  265. 
Sunday  laws.  265. 
usury  laws,  270. 
wagers  and  gambling  transactions,  275. 

offer  of  premium  or  reward,  277. 

contracts  of  insurance,  275,  277. 

dealings  in  futures,  278. 

lotteries,  280. 
agreements  contrary  to  public  policy,  in  general,  281. 
tending  to  injure  the  public  service,  282. 

traffic  in  public  offices,  282. 

compensation  of  public  officers,  283. 

assignment  of  salary  or  pension  by  officer,  284. 

lobbying  contracts,  285. 

corruption  of  public  administrative  officers,  286. 

agreements  by  public  or  quasi  public  corporations,  288. 
agreements  affecting  the  government,  289. 
agreements  promotive  of  nonofficial  corruption,  290. 

breach  of  public  duty  by  private  citizen,  290. 

impairing  integrity  of  public  elections,  290. 
perversion  or  obstruction  of  public  justice,  in  general,  292. 

compounding  crime,  293. 

reference  to  arbitration,  294. 
encouragement  of  litigation,  champerty  and  maintenance,  296. 
agreements  of  immoral  tendency,  300. 
agreements  tending  to  fraud  and  breach  of  trust,  in  general,  301. 

by  officer  of  corporation,  301. 

by  agent,   301. 
in  derogation  of  the  marriage  relation,  302. 

restraint  of  marriage,  302. 

marriage  brocage,  302. 

separation  agreements,  803. 

agreements  to  facilitate  divorce,  304. 

other  agreements,  304.     • 


692  INDEX. 

[The  figures  refer  to  pages.] 

UNLAWFUL  AGREEMENTS— Continued. 

in  derogation  of  parental  relation,  305. 
restraint  of  trade,  305. 

consideration,  seal,  60. 

reasonableness  of  restraint,  305. 

unlimited  as  to  space,  308. 

unlimited  as  to  time,  309. 

sale  of  secret  process,  311. 

unlawful  combinations,  monopolies,  trusts,  etc.,  312. 

"corners"  in  the  market,  315. 

monopolies  under  patents,  315. 

combinations  between  laboi'ers,  mechanics,  etc.,  316. 

combinations  between  employers,  318. 
exempting  from  liability  for  negligence,  318. 
effect  of  illegality,  321. 

agreements  partly  illegal,  321. 
,    indivisible  agreements,  322. 

divisible  agreements,  324. 
direct  object  unlawful,  but  intention  innocent,  325. 

mistake  of  law,  325. 

mistake  or  ignorance  of  fact,  326. 
direct  object  innocent,  but  intention  unlawful,  327. 

the  English  rule,  327. 

the  rule  in  America,  328. 

distinction    where   illegal    act   Is    past,    331,    note. 

unlawful  intention  on  one  side  only,  331. 
promises  to  pay  money  due  or  to  become  due  on  illegal  transactions,  332. 

distinction  between  "void"  and  "illegal,"  332. 

negotiable  instruments,  334. 
relief  of  party  to  unlawful  agreement,  336. 

ex  dolo  malo  non  oritur  actio,  336. 

locus  poenitentiae,  338. 

par  delictum,  340. 

rights  of  factors,  brokers,  and  other  agents,  341. 

recovery  of  money  paid,  546. 
illegality  distinguished  from  fraud,  259. 
*  conflict  of  laws,  342. 
as  to  space,  342. 

as  to  time,  change  of  law,  342. 
part  performance,  552. 

UNLIQUIDATED  CLAIM, 

consideration  of  discharge,  132. 
USAGE, 

see  "Custom  and  Usage.* 

USURY, 

in  general,  270. 

V 

VAGUENESS, 

see  "Certainty." 
VARIANCE, 

between  offer  and  acceptance,  27-29. 
lapse  of  offer,  36. 


INDEX  693 

[The  figures  refer  to  pages.] 
VENDOR  AND  PURCHASER, 

see  "Couditions";    "Fraud";    "Frauds,  Statute  of ;    "Misrppresentatlon" ; 
"Mistake" ;    "Warranty." 

VOID, 

see  specific  heads  such  as  "Drunken  Persons,"  "Infants,"  eta 
meaning  of  term,  10. 
distinction  between  "void"  and  "illegal,"  332. 

VOIDABLE, 

see  specific  heads  such  as  "Drunken  Persons,"  "Infants,"  etc 
meaning  of  term,  10. 

w 

WAGERS, 

validity,  275-279. 

WAIVER, 

see  "Discharge  of  Contract." 
of  written  contract,  statute  of  frauds,  65. 
of  statute  of  frauds.  96. 
of  discharge  from  liability,  140. 
of  breach,  4(JG. 
of  tort,  538,  549. 

WAR, 

effect  on  contracts  with  aliens,  147. 

WARRANTY, 

distinguished  from  representation,  209 
distinguished  from  condition,  209,  4G5. 
of  authority  by  agent,  5 IS. 

WEIGHTS  AND  MEASURES, 

sales  without  use  of  approved  weights  or  measures,  263. 

WILLS, 

as  memorandum  required  by  statute  of  frauds,  83. 

WITNESSES, 

agreements  tending  to  induce  perjury,  292. 

WRITTEN  CONTRACTS, 

see  "Frauds,  Statute  of." 
necessity  for  writing,  02-105.  . 

deeds,  51. 

negotiable  instruments,  03. 
assignment  of  patent  or  copyright,  64. 
acceptance  of  bill  of  exchange  or  order,  63. 
insurance,  63. 

acknowledgment  of  barred  debt,  63. 
new  promise  by  infant,  63. 
conveyances  of  land.  04. 
waiver,  statute  of  frauds,  65. 


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THIRD  EDITION:     By  FRANCIS  B.  TIFFANY. 


TABLE    OF    CONTENTS. 


CiIiapteT   I. 

OF  NEGOTIABILITY  SO  FAR  AS  IT  RE- 
LATES TO  BILDS  AND  NOTES  :  Cover- 
ing the  origin,  purpose,  and  indicia  of  nego- 
tiability, distinction  between  negotiability 
and  assignability,  and  payment  by  negotia- 
ble instrument. 

Chapter  II. 

OP  NEGOTIABLE  BILLS  AND  NOTES, 
AND  THEIR  FORMAL  AND  ESSEN- 
TIAL REQUISITES:  Covering  definition, 
form,  and  essentials,  the  order,  the  promise, 
specification  of  parties,  capacity  of  parties, 
delivery,  date,  value  received,  and  days  of 
grace. 

Chapter   IH. 

ACCEPTANCE  OF  BILLS  OF  EXCHANGE  : 
Covering  the  various  kinds  of  acceptance, 
and  the  rules  relating  thereto. 

Chapter   IV. 

INDORSEMENT  :  Defining  and  explaining  the 
various  kinds  of  indorsements,  and  showing 
their  requisites  and  effect. 

Chapter  V. 

OF  THE  NATURE  OF  THE  LIABILITIES 
OP  THE  PARTIES:  Covering  liability  of 
maker,  acceptor,  drawer,  indorser,  rights  and 
liabilities  of  accommodation  and  accommo- 
dated parties,  estoppel  and  warranties,  and 
damages  for  breach. 


Chapter  VI. 

TRANSFER  :     Covering  definition,  validity,  and 
various  methods  of  transfer,  and  status  ofj 
overdue  paper. 


Chapter  VII. 

DEFENSES    AS     AGAINST    PURCHASER, 
FOR  VALUE  WITHOUT  NOTICE  :    Cov- 
ering the  subject  generally  and  fully. 


Chapter  VIIL 

THE    PURCHASER    FOR    VALUE    WITH- 
OUT   NOTICE:      Explaining    who    is.    and] 
discussing  consideration,  good   faith,   rmtice,] 
overdue  pai>er,  presumption,  and  burden  of 
proof,  etc. 

Chapter  IX. 

OP  PRESENTMENT  AND  NOTICE  OF  DIS-, 
HONOR  :     Covering  presentment  for  accept-] 
ance  and  for  payment,  dishonor,  protest,  no 
tice  of  dishonor,  waiver,  etc. 


CHECKS  : 
to  checks 


APPENDIX : 
1        Law. 


Chapter  X. 

Covering  generally  the  law  relp.tingJ 


The     Negotiable     Instrument 


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♦  ♦  c£V ♦  ♦ 


5<ittb6ooft  of  Cvimind  Satt), 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 


SECOND  EDITION:     By  FRANCIS  B.  TIFFANY. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITION  OF  CRIME:  The  nature  of  crime 
and  ground  of  punishment. 

CHAPTER  II. 

CRIMINAL  LAW:  How  the  criminal  law  Is  pre- 
scribed; the  common  law:  statutes,  and  the 
powers  of  state  and  federal  legislatures. 


CHAPTER  III 

CLASSIFICATION  OF  CRIMES 
onies,  misdemeanors,  etc. 


As  treason,  fel- 
merser  of  offenses. 


CHAPTER  IV. 

THE  MENTAL  ELEMENT  IN  CRIME:  Con- 
sidering the  will,  intention,  motive,  and  crim- 
inal intention  or  malice. 

CHAPTER  V. 

PERSONS  CAPABLE  OF  COMMITTING  CRIME: 
Covering  also  exemption  from  responsibility, 
and  discussing  infancy,  insanity,  drunkenness, 
.  ignorance  or  mistake  of  law  or  of  fact,  provo- 
cation, necessity  and  compulsion,  married  wo- 
men and  corporations. 

CHAPTER  VI. 

PARTIES  CONCERNED:  Covering  effect  of 
joining  in  criminal  purpose,  principles  in  first 
and  second  degrees,  accessories  before  and 
after  the  fact,  terms  "aider  and  abettor"  and 
"accomplice. " 

CHAPTER  VII. 

THE  OVERT  ACT:  Covering  also  attempts,  so- 
licitation and  conspiracy. 

CHAPTER  VIII. 

OFFENSES  AGAINST  THE  PERSON:  Cover- 
ing homicide,  murder,  and  manslaughter,  with 
consideration  of  the  different  degrees,  acci- 
dent, self-defense,  etc 

CHAPTER  IX. 

OFFENSES  AGAINST  THE  PERSON  (Contin- 
ued) :  Covering  abortion,  maj^hem.  rape,  sod- 
omy, seduction,  assaults,  false  imprisonment, 
kidnapping,  abduction. 


CHAPTER  X. 

OFFENSES  AGAINST  THE  HABITATION: 
Covering  arson  and  burglary. 

CH.APTER  XI. 

OFFENSES  AGAINST  PROPERTY:  Covering 
larceny,  embezzlement,  cheating  at  common 
law  and  by  false  pretenses,  robbery,  receiving 
stolen  goods,  malicious  mischief,  forgery,  etc 

CHAPTER  XII. 

OFFENSES  AGAINST  THE  PUBLIC  HEALTH, 
MORALS,  ETC. :  Covering  nuisances  in  gen- 
eral, bigamy,  polygamy,  adultery,  fornication, 
lewdness,  etc. 

CHAPTER  XIIL 

OFFENSES  AGAINST  PUBLIC  JUSTICE  AND 
AUTHORITY:  Covering  barretry,  obstruct- 
ing justice,  embracery,  prison  breach,  mispri- 
sion of  felony,  compounding  crime,  perjury, 
bribery,  misconduct  in  office,  etc 

CHAPTER  XIV. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE 
Covering   dueling,   unlawful    assembly,    riot, 
affray,  forcible  entry  and  detainer,  libels  on 
private  persons,  etc 

CHAPTER  XV. 

OFFENSES  AGAINST  THE  GOVERNMENT: 
Covering  treason  and  misprision  of  treason. 

CHAPTER  XVI. 

OFFENSES  AGAINST  THE  LAW  OP  NA- 
TIONS:    As  piracy. 

CHAPTER  XVII. 

JURISDICTION:  Covering  terriiorial  limits  of 
states  and  United  States,  jurisdiction  as  deter- 
mined by  localitv,  federal  courts  and  the  com- 
mon law,  jurisdiction  conferred  by  congress, 
persons  subject  to  our  laws,  etc 

CHAPTER  XVIII. 

FORMER  JEOPARDY :     In  generaL 


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SECOND  EDITION:     By  FRANCIS  B.  TIFFANY. 


CHAPTER  I. 

CONTRACT  IN  GENERAL:  Covering  Its  defi- 
nition, nature,  and  requisites,  and  discussing 
agreement,  obligation,  promise,  void,  voidable, 
and  unenforceable  agreements,  and  the  essen- 
tials of  contract,  etc. 

CHAPTER  n- 

OPFER  AND  ACCEPTANCE:  Covering  Im- 
plied contracts,  necessity  for  communication 
and  acceptance,  character,  mode,  place,  time, 
and  effect  of  acceptance,  revocation,  and  lapse 
of  offer,  etc. 

CHAPTER  m. 

CLASSIFICATION  OF  CONTRACTS:  Cover- 
ing contracts  of  record  and  contracts  under 
seal,  and  their  characteristics. 

CHAPTER  IV. 

REQUIREMENT  OF  WRITING :  Covering  also 
statute  of  frauds,  and  discussing  promise  by 
executor,  promise  to  answer  for  another, 
agreements  in  consideration  of  marriage  and 
In  relation  to  land,  and  afreements  not  to  be 
performed  within  a  year,  sufficiency  of  memo- 
randum, etc. 

CHAPTER  V. 

CONSIDERATION :  Covering  the  necessity  for 
consideration,  its  adequacy,  reality,  and  legal- 
ity, failure  of  consideration,  eto. 

CHAPTER  VI. 

CAPACITY  OP  PARTIES:  Covering  political 
and  professional  status,  infants,  insane  and 
drunken  persons,  married  women,  and  corpo- 
ratiooa. 


CHAPTER  Vn. 

REALITY  OF  CONSENT:  Covering  mistake, 
misrepresentation,  fraud,  duress,  and  undue 
influence. 

CHAPTER  VIII. 

LEGALITY  OF  OBJECT:  Covering  unlawful 
agreements  in  general,  agreements  in  viola- 
tion of  positive  law  and  those  contrary  to  pub- 
lic policy,  effect  of  illegality,  conflict  of  laws, 
etc. 

CHAPTER  EX. 

OPERATION  OF  CONTRACT:  Covering  the 
limits  of  the  contractual  relation,  assignment 
of  contracts,  whether  by  act  of  parties  or  by 
operation  of  law,  joint  and  several  contracts, 
Bto. 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT:  Covei> 
ing  the  rules  relating  to  evidence,  proof  of 
document,  rules  of  construction,  penalties  and 
liquidated  damages,  etc 

CHAPTER  XI. 

DISCHARGE  OF  CONTRACT:  Covering  dis- 
charge by  agreement,  by  performance,  by 
breach,  by  impossibility  of  performance,  by 
operation  of  law,  etc.,  and  remedies  on  breach 
of  contract. 

CHAPTER  XII. 

AGENCY:  Covering  the  creation  of  the  relation, 
its  effect  and  determination,  the  capacity, 
rights,  and  liabilities  of  the  parties,  eta 

CHAPTER  Xin. 

QUASI  CONTRACT:  Covering  obligations  cre- 
ated by  law  upon  which  an  action  ex  contractu 
will  lie  without  proof  of  contract  in  fact,  in- 
cluding judgments,  obligations  imposed  by 
statute,  acts  of  parties,  etc 


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5EC0ND  EDITION. 


TABLE   OF  CONTENTS. 


Chapter  I. 

FORMS  OF  ACTION :  Covering  the  nature  and 
classification  of  actions,  real,  personal,  and 
mixed  actions,  assumpsit,  special  and  general, 
debt,  covenant,  account  or  account  rendered. 

Chapter   H. 

KORMS  OF  ACTION  (Continued):  Covering 
trespass,  trover,  case,  detinue,  replevin,  eject- 
ment, writ  of  entry,  forcible  entry  and  detain- 
er, etc.  

Cbapter  HI. 

THE  PARTIES  TO  ACTIONS :  Covering  actions 
in  form  ex  contractu  and  ex  delicto,  and  the 
consequences  of  misjoinder  or  nonjoinder  of 
parties  plaintiff  or  defendant. 

Chapter  IV. 

THE  PROCEEDINGS  IN  AN  ACTION:  Cover- 
ing process,  the  summons,  writ  of  attachment, 
appearance,  the  declaration,  demurrer,  and  va- 
rious pleas,  amendments,  etc.,  the  verdict,  and 
proceedings  after  the  verdict,  the  judgment, 
and  proceedings  thereafter  to  the  writ  of  exe- 
cution. 

Chapter  V. 

THE  DECLARATION:  Statement  of  cause  of 
action  in  general;  form  of  declaration;  es- 
sential averments  of  declaration  in  special  as- 
sumpsit or  on  common  counts,  in  debt,  cove- 
nant, account,  case,  detinue,  trover,  trespass, 
replevin,  ejectment,  and  trespass  for  mesne 
profits  after  ejectment. 

Chapter  VI. 

THE  PRODUCTION  OP  THE  ISSUE:  Discuss- 
ing the  rules,  and  covering  the  demurrer,  the 
f)leadings,  the  traverse,  forms  of  the  general 
ssue  and  of  the  special  traverse,  protesta- 
tiona,  exceptions,  issues  in  fact  and  law,  etc 


Chapter  VIX. 

MATERIALITY  IN  PLEADING:  Covering  th« 
general  rule,  variance,  limitation  of  traverse, 
etc. 

Chapter  VIII. 

SINGLENESS  OR  UNITY  IN  PLEADING:  COT- 
ering  the  rules  in  generai,  duplicity,  immate- 
rial matter,  inducement,  protestation,  conse- 
quences of  duplicity  and  of  misjoinder,  plea 
and  demurrer,  etc 

Chapter   IX. 

CERTAINTY  IN  PLEADING:  Covering  the 
venue,  time,  quantity,  quality,  and  value, 
names  of  persons,  showing  title  and  author- 
ity, with  subordinate  rules,  and  special  re- 
quirements in  different  stages. 

Chapter  X. 

CONSISTENCY  AND  SIMPLICITY  IN  PLEAD 
ING :  Covering  insensibility,  repugnancy,  am- 
biguity, argumentative  pleadings,  pleadings 
in  alternative,  positive  statements,  legal  effect 
conformance  to  precedent,  commencement  ana 
conclusion. 

Chapter    XI. 

DIRECTNESS  AND  BREVITY  IN  PLEADING: 

Covering  the  rules  generally,  departure,  pleas 
amounting  to  general  issue,  surplasage,  etc 

Chapter  XH. 

MISCELLANEOUS     RULES:       Covering    con 
formance  to   process,   alleging  damages  and 
production  of  suit,  (^rder  of  pleading,  defense, 
plea  In  abatement,  dilatory  pleas,  eta 

APPENDIX:    Form*. 


This  book  embodies  such  of  the  rules  and  principles  of  Common-Law  Pleading  as  are  still 
recognired  and  applied  in  this  country.  A  knowledge  of  the  common-law  system  is  of  advantage,  if 
indeed,  it  is  not  essential,  to  a  thorough  understanding  of  both  code  and  equity  pleading. 

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TABLE     OF     CONTENTS. 


Chapter  I.  i 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Considering  the  meaning  of  "Constitutional" 
and  "Unconstitutional;  "  written  and  unwrit- 
ten constitutions,  bills  of  rights,  right  of  revo- 
.  lution,  political  and  personal  responsibilities, 
etc. 

Chapter  II. 

THE  UNITED  STATES  AND  THE  STATES: 
Considering  the  nature  of  the  American 
Union,  sovereignty  and  rights  of  the  states 
and  of  the  people,  form  of  government,  the 
Federal  Constitution,  etc 

Chapter   IH. 

ESTABLISHMENT  AND  AMENDMENT  OP 
CONSTITUTIONS:  Containing  an  historical 
introduction,  and  considering  the  establish- 
ment and  amendment  of  the  Federal  Constitu- 
tiou  and  of  State  Constitutions. 

Chapter   IV. 

CONSTRUCTION  AND  INTERPRETATION  OP 
CONSyiTUTIONS:  Considering  the  office 
and  duty  of  the  judiciary  in  this  direction. 

Chapter   V. 

THE  THREE  DEPARTMENTS  OP  GOVERN- 
MENT: Considering  the  division,  limitations 
on  the  departments,  political  and  judicial 
questions,  etc. 

Chapter   VI. 

THE  FEDERAL  EXECUTIVE:  Considering 
the  election,  qualifications,  impeachment, 
compensation  and  independence  of  the  Presi- 
dent, his  oath  of  office,  veto  power,  pardoning 
and  military  power,  and  treaty-making  povver ; 
vacancy  in  office^  the  cabinet,  appointments 
to  office,  presidential  messages,  diplomatic  re- 
lations, authority  to  convene  and  adjourn  con- 
gress, execute  the  laws,  etc. 

Chapter   VII. 

FEDERAL  JURISDICTION:  Considering  the 
jurisdiction,  powers  and  procedure  of  Federal 
courts,  removal  of  causes,  the  United  States 
and  the  states  as  parties,  etc. 

Chapter   VIII. 

THE  POWERS  OP  CONGRESS:  Considering 
the  constitution,  organization  and  government 
of  congress,  its  powers,  and  the  limitations 
thereon. 

Chapter   IX. 

nrrERSTATB  law,  as  determined  by  the  Con- 
stitution: Considering  its  general  principles, 
the  privileges  of  citizens,  interstate  extradi- 
tion, public  acts  and  judicial  proceedings,  etc. 

Chapter   X. 

BKPUBLICAN  GQVEliNMENT  GUARANTIED. 


Chapter   XT. 

EXECUTIVE  PO  \N  ER  IN  THE  STATES. 

Chapter   XII. 

JUDICIAL  POWERS  IN  THE  STATES:  Con 
sidering  the  system  of  courts,  judges,  juris 
diction,  process  and  procedure. 

Chapter    XIII. 

LEGISLATIVE  POWER  IN  THE  STATES:    Con 

sidering  the  organization  and  government  of 
legislature,  limitation  and  delegation  of  legis- 
lative powers,  enactment  ot  laws,  eto. 

Chapter   XIV. 

THE  POLICE  POWER:  Considering  the  police, 
power  as  vested  in  congress  and  in  the  states. 
and  its  scope  and  limitations. 

Chapter  XV, 

THE  POWER  OF  TAXATION:  Considering 
the  purposes  of  taxation,  independence  of 
Federal  and  State  governments,  limitations  on 
power,  taxation  and  representation,  etc 

Chapter  XVI. 

THE  RIGHT  OF  EMINENT  DOMAIN:  Defini 
tion  and  nature  of  the  power,  constitulionai 
provisions,  authority  to  exercise,  public  pur- 
pose, appropriation  to  new  uses,  etc 

Chapter   XVIL 

MUNICIPAL  CORPORATIONS:  The  nature, 
control,  powers,  officers  and  by-laws  of  ms- 
nicipal  corporations,  etc. 

Chapter   XVIII. 

CIVIL  RIGHTS,  AND  THEIR  PROTECTION 
BY  THE  CONSTITUTION:  Considering 
rights  in  general,  liberty,  due  process  of  law, 
vested  rights,  trial  by  jury,  eta 

Chapter  XIX. 

POLITICAL  AND  PUBLIC  RIGHTS:  Consider 
ing  citizenship,  right  of  suffrage,  freedom  ol 
speech,  right  of  assembly  and  petition,  etc 

Chapter  XX. 

CONSTITUTIONAL    GUARANTIES   IN    CRIM 
INAL    CASES:      Considering  trial  by  jury, 
rights  of  accused,  jeopardy,  ball,  ex  post  facto 
laws,  habeas  corpus,  etc 

Chapter  XXI. 

LAWS  IMPAIRING  THE  OBLIGATION  OF 
CONTRACTS:  Considering  the  obligation 
and  the  impairment  of  the  contract,  povver  cf 
legislature  to  contract,  remedies  on  contracts, 
etc. 

Chapter   XXH. 

RETROACTIVE  LAWS:  Considering  the  validity 
of  retroactive  statutes,  curative  statutes,  etc 


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TABLE    OF    CONTENTS. 


Chapter   I. 

If  ATURB  AND  DEFINITION  OP  EQUITY. 

Chapter  II. 

PRINCIPLES  DEFINING  AND  LnnTING  JU- 
RISDICTION :  Considering  jurisdiction  over 
crimes,  adequate  legal  remedy,  complete  re- 
lief, and  multiplicity  of  suits. 

Chapter   III. 

THE  MAXIMS  OF  EQUITY:  Definition  and 
classification  of  maxims;  the  enabling  and  re- 
ttrictive  maxims. 

Chapter   IV. 

THE  DOCTRINES  OF  EQUITY:  Considering 
estoppel,  election,  satisfaction,  performance, 
and  conversion. 

Chapter   V. 

THE  DOCTRINES  OF  EQUITY  (Continued): 
Considering  conflicting  rights  of  purchasers, 
assignees,  notice,  bona  fide  purchasers,  priori- 
ties, etc. 

Chapter   VI. 

THE  DOCTRINES  OF  EQUITY  (Continued): 
Considering  penalties  and  forfeitures,  liqui- 
dated damages. 


Chapter   VH. 

GROUNDS  FOR   EQUITABLE   RELIEF: 
aidering  accident,  mistake,  fraud,  etc 


Con- 


Chapter   VIII. 

PROPERTY  IN  EQUITY— TllUSTS:  Covering 
definition,  history,  and  classification  of  trusts, 
charitable  trusts,  duties  and  liabilities  of  trus- 
tees, remedies  of  cestui  que  trust,  etc. 

Chapter   IX. 

PROPERTY  IN  EQUITY  —  MORTGAGES, 
LIENS,  AND  ASSIGNMENTS. 

Chapter    X. 

EQUITABLE  REMEDIES :  Covering  accounting, 
contribution,  exoneration,  subrogation,  and 
marshaling. 

Chapter    XI. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering partition  and  settlement  of  boundaries. 

Chapter   XII. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering specific  performance,  and  considering 
enforceable  contracts,  grounds  for  refusing  re- 
lief, etc. 

Chapter    XIII. 

EQUITABLE    REMEDIES    (Continued):     Cov- 
ering injunctions,  and  considering'  their  juris- 
dictional principles,  classes  of   cases   wher«' 
remedy  may  be  used,  etc 

Chapter   XIV. 

REFORMATION,  CANCELLATION,  AND 
QUIETING  TITLE. 

Chapter   XV. 

ANCILLARY  REMEDIES :  Covering  discovery, 
bills  to  perpetuate  testimony,  interpleader, 
receivers,  etc 


I  VOL.,  474  PAGES,  $375.   DELIVERED. 


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Cviminai  (procedure. 

(^ut^r  of  a  "^an^fioofi  of  Criminaf  &at»,"  ani>  a 
§ant)6ooS  of  Contracts." 


TABLE  OF  CONTENTS. 


Chapter   I. 

JURISDICTION:  Covering  courts  of  criminal  ju- 
risdiction and  venue. 

Chapter   H. 

APPREHENSION  OP  PERSONS  AND  PROP- 
ERTY :  Covering  arrest  in  general,  warrants, 
extradition,  searches  and  seizures  of  property, 
and  taking  property  from  prisoner. 

Chapter    III. 

PRELIMINARY  EXAMINATION,  BA.rL.  AND 
COMMITMENT :  Covering  right  to  release  on 
bail,  habeas  corpus,  the  recognizance,  release 
of  sureties,  etc. 


IV. 

Covering  the  indict- 


Chapter 

MODE  OF  ACCUSATION: 

ment  and  presentment,  information,  coroner's 
inquisition,  time  of  prosecution,  and  nolle 
prosequi,  etc 

Chapter   V. 

PLEADING  — THE  ACCUSATION:  Covering 
form  of  indictment  in  general,  the  commence- 
ment, and  the  statement  of  offense  and  descrip- 
tion of  defendant. 

Chapter   VI. 

PLEADING  — THE  ACCUSATION  (Continued): 
Covering  allegation  of  intent,  knowledge,  etc. ; 
technical  terms;  second  or  third  offense,  set- 
ting forth  writings;  description  of  property 
and  persons ;  ownership. 

Chapter   VII. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  statement  of  time  and  place. 


Chapter   VIII.» 

PLEADING— THE  ACCUSATION  (Continued)  i 
Covering  indictments  on  statutes. 

Chapter   IX. 

PLEADING— THE  ACCUSATION  (Continued) : 
Covering  duplicity,  joinder  of  counts  and  par- 
ties, election,  conclusion  of  indictment,  amend- 
ment, aider  by  verdict,  etc. 

Chapter    X. 

PLEADING  AND  PROOF:  Covering  varlanc 
and  conviction  of  minor  and  higher  offense. 

Chapter    XI. 

MOTION  TO  QUASH:  Covering  also  arraign- 
ment, demurrer,  and  pleas  of  defendant. 

Chapter    XII. 

TRIAL  AND  VERDICT:  Covering  time  and  place 
of  trial,  custody  and  presence  of  defendant, 
bill  of  particulars,  the  counsel,  judge  and  jury, 
arguments  and  instructions,  etc. 

Chapter    XIII. 

PROCEEDINGS  AFTER  VERDICT:  Covering 
motion  in  arrest  of  judgment,  sentence,  new 
trial,  writ  of  error,  etc. 

Chapter    XIV. 

EVIDENCE:  Covering  facts  in  issue,  motive, 
res  gesiae,  other  crimes,  declarations,  confes- 
sions, character,  burden  of  proof,  witnessea, 
etc. 

Chapter   XV. 

HABEAS  CORPUS. 


I  VOL.     658  PACES.     $3.75,  DELIVERED. 


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Author  of   "Tiffany  on  Death  by  Wrongful  Act" 


TABLE  OF  CONTENTS. 


Chapter   I. 

FORMATION  OF  THE  CONTRACT:  Covering 
the  capacity  of  parties,  who  may  sell,  the  thing 
sold,  mutual  assent,  form,  and  price. 


I  Chapter    TTL 

ILLEGALITY :  Covering  sales  prohibited  by  the 
common  law,  by  public  policy,  and  by  statute; 
the  effect  of  illegality,  and  the  conflict  of  laws. 


Chapter   II. 

FORMATION  OF  THE  CONTRACT  (Continued) : 
Covering  the  statute  of  frauds. 

Chapter    IIL 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY:  Covering  sales  of  specific 
chattels,— unconditional  sales,  conditional  sales, 
sale  on  trial  or  approval,  and  sale  or  return. 

Chapter    IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY  (Continued) :  Covering  sales 
of  chattels  not  specific,  appropriation  of  property 
to  the  contract,  reservation  of  right  of  disposal, 
etc. 

Chapter    V. 

MISTAKE,  FAILURE  OF  CONSIDERATION, 
AND  FRAUD  :  Showing  the  effect  of  mistake, 
failure  of  consideration,  and  fraud  generally, 
frauds  on  creditors,  the  delivery  necessary  as 
against  ci-editors  and  purchasers,  etc. 


Chapter    VIL 

CONDITIONS   AND  WARRANTIES:     Covering 
conditions  and  warranties  generally. 


Chapter    VIII. 

PERFORMANCE:  Covering  fully  delivery,  the 
buyer's  right  of  examination,  acceptance,  and 
payment. 

Chapter   IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE 
GOODS:  Covering  the  seller's  lien,  stoppage 
in  transitu,  and  the  right  of  resale. 


Chapter   X. 

ACTION  FOR  BREACH  OF  THE   CONTRACTT: 

Covering  the  various  remedies  of  the  seiier  and 
of  the  buver. 


J  Volume.     356  Pages.     $3.75,  Delivered. 


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(9) 


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Acting  Judge  Advocate, 
United  States  Army. 


TABLE   OF    CONTENTS. 


INTRODUCTION. 

Covering  the  detinitioD,  source,  and  nature  of  In- 
ternational Law. 

Cliapter   I. 

PERSONS  m  INTERNATIONAL  LAW:  Cov- 
ering slates,  their  loss  of  identity,  various  unions 
of  states,  de  facto  states,  belligerency  and  recog- 
nition thereof,  and  equality  of  states. 

Chapter   II. 

THE  COMMENCEMENT  OF  STATES— FUNDA- 
MENTAL RIGHTS  AND  DUTIES:  Covering 
the  commencement  and  recognition  of  new 
states,  effect  of  change  of  sovereignty,  the  fun- 
damental right*  and  duties  of  states,  etc. 

Chapter   IIL 

TERRITORIAL  PROPERTY  OF  A  STATE: 
Covering  modes  of  acquiring  property,  boun- 
daries, territorial  waters,  etc. 

Chapter   IV. 

TERRITORIAL  JURISDICTION:  Covering  ex- 
territoriality, sovei'eigns  and  diplomatic  agents 
and  their  immunities,  vessels,  right  of  asylum, 
alienage,  responsibility  for  mob  violence,  extra- 
dition, jurisdiction  beyond  state  limits,  etc. 

Chapter   V. 

JURISDICTION  ON  THE  HIGH  SEAS  AND 
UNOCCUPIED  PLACES:  Covering  nature  of 
jurisdiction,  jurisdiction  over  merchant  ships, 
piracy,  privateers,  letters  of  marque,  slave 
trade,  etc. 

Chapter   VI. 

THE  AGENTS  OF  A  STATE  IN  INTERNA- 
TIONAL RELATIONS:  Covering  public  diplo- 
matic agents  and  consuls,  and  matters  relating 
to  them. 

Chapter   VII. 

INTERVENTION :  Covering  the  subject  gener- 
ally. 

Chapter   VIII. 

NATIONALITY:  Covering  citizenship,  allegi- 
ance, expatriation,  naturalization,  etc. 


TREATIES : 


Chapter   IX. 

Covering  the  subject  generally. 


Chapter    X. 

AMICABLE  SETTLEMENT  OF  DISPUTES: 
Covering  mediation,  arbitration,  retorsion,  re- 
prisals, embargo,  pacific  blockade,  etc. 

Chapter    XI. 

INTERNATIONAL  RELATIONS  IN  WAR: 
Covering  the  subject  of  war  generally,  includ- 
ing the  kinds,  causes,  and  objects  of  war. 

Chapter   XII. 

EFFECTS  OF  WAR— AS  TO  PERSONS:  Cov- 
ering the  relations  of  enemies,  noncombatants, 
privateers,  prisoners  of  war,  and  the  subjects  of 
ransom,  parole,  etc 


Chapter   XIII. 

EFFECTS    OF    WAR  — AS    TO    PROPERTY: 

Covering  contributions,  requisitions,  foraging, 
booty,  ransom,  and  other  questions  in  regard 
to  property. 

Chapter   XIV. 

POSTLIMINIUM:  The  right  and  its  limitations 
defined  and  explained. 

Chapter   XV. 

MILITARY  OCCUPATION:  Covering  the  defi- 
nition, extent,  and  effeet  of  occupation,  and  the 
duties  of  an  occupant. 

Chapter    XVI. 

MEANS  OF  CARRYING  ON  HOSTILITIES: 
Covering  the  instruments  an  1  means  of  war, 
spies,  etc. 

Chapter   XVII. 

ENEMY  CHARACTER:  Covering  enemies  gen- 
erally, domicile,  house*  of  trade,  property  and 
transfer  thereof,  etc. 

Chapter   XVIII. 

NON-HOSTILE  RELATIONS:  Covering  com- 
mercia  belli,  flags  of  truce,  passports,  safe-con- 
ducts, truces  or  armistices,  cartels,  etc. 

Chapter   XIX. 

TERMINATION  OP  WAR:  Covering  the  meth- 
ods of  termination,  uti  possidetis,  treaties  of 
peace,  conquest,  etc. 

Chapter    XX. 

OF  NEUTRALITY  IN  GENERAL:  Neutrality 
defined  and  explained. 

Chapter   XXI. 

THE  LAW  OF  NEUTRALITY  BETWEEN  BEL- 
LIGERENT AND  NEUTRAL  STATES:  Cov- 
ering the  rights,  duties,  and  liabilities  of  neutral 
states. 

Chapter   XXII. 

CONTRABAND :    Covering  the  subject  generally. 


BLOCKADE: 


Chapter  XXIII. 

Covering  the  subject  generally. 


Chapter  XXIV. 

VISIT  AND  SEARCH,  AND  RIGHT  OF  AN- 
GARY :    Covering  those  subjects  generally. 

APPENDIX. 

Giving  in  full,  as  in  no  other  single  work,  the  In- 
structions for  the  Government  of  Armies  of  the 
United  States  in  the  Field  (Lieber) ;  Papers  Car- 
ried, or  that  Ought  to  be  Carried,  by  Vessels  in 
Evidence  of  their  Nationality ;  The  Declaration 
of  Paris;  The  Declaration  of  St.  Petersburg; 
The  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  the  Sick  and  Wounded  of  Ar- 
mies in  the  Field;  The  Laws  of  War  on  Land, 
(Recommended  for  Adoption  by  the  Institute  of 
International  Law  at  Oxford,  Sept.  9, 1880) ;  and 
The  Brussels  Conference. 


1   VOLUME.     500   PAGES.      $3.75.   DELIVERED. 

WEST  PUBLISHING  CO.,  St.  Paul.  Minn. 

(10) 


(€5e  gornBooft  ^erlee.) 

tU  Scitt)  of  €or(0. 

(gbwin  ^.  ^aggori,  @..  (ttt.,  ££.  (^., 

Professor  of  the  Law  of  Torts  in  the  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS 
PART  I^IN  GENEBAIi. 
Chapter   I. 


GENERAL  NATURE  OF  TORTS:  Covering  the 
law  adjective  and  law  substantive,  distinctions 
between  torts  and  crimes,  common-law  obliga- 
tions and  remedies,  how  and  why  liability  atr 
taches  for  torts,  the  mental  element,  connec- 
tion as  cause,  damnum  and  injuria,  common- 
law,  contract  and  statutory  duties,  etc. 

Chapter    II. 

VARIATIONS  IN  THE  NORMAL  RIGHT  TO 
TO  SUE:  Covering  exemptions  based  on 
privilege  of  actor,  as  public  acts  of  states,  of 
judicial  and  executive  officers,  etc.,  and  private 
acts  authorized  by  statute  or  common  law, 
variations  based  on  status  or  conduct  of  plain- 
tiff, etc. 

Chapter  III. 

LIABILITY  FOR  TORTS  COMMITTED  BY  OR 
WITH  OTHERS:  Covering  liability  by  con- 
cert in  action  or  joint  torts,  and  liability  by 
relationship,  as  husband  and  wife,  landlord 
and  tenant,  master  and  servant,  partners,  etc. 

Chapter  IV. 

DISCHARGE  AND  LIMITATION  OF  LIABILI- 
ITY  FOR  TORTS:  Covering  discharge  or 
limitation  by  voluntary  act  of  party  and  by 
operation  of  law. 

Chapter  V. 

REMEDIES:  Covering  statutory  and  common- 
law  remedies,  judicial  and  extrajudicial  reme- 
dies, damages,  etc. 

PART  H.— SPECIFIC  WRONGS. 

Chapter  VI. 

WRONGS  AFFECTING  SAFETY  AND  FREE- 
DOM OF  PERSONS:  Covering  false  impris- 
onment, assault  and  battery,  and  the  defenses, 
as  justification  and  mitigation. 


Chapter  VIT. 

INJURIES  IN  FAMILY  RELATIONS:  Cover- 
ing the  family  at  common  law,  master  and 
servant,  parent  and  child,  husband  and  wife. 


Chapter  VIII. 

WRONGS  AFFECTING  REPUTATION:  Cover- 
ing libel,  slander,  and  slander  of  title,  together 
with  the  defenses. 

Chapter   IX. 

MALICIOUS  WRONGS:  Covering  deceit,  mali- 
cious prosecution,  abuse  of  process,  interfer- 
ence with  contract,  conspiracy,  etc. 

Chapter  X. 

WRONGS  TO  POSSESSION  AND  PROPERTY: 
Covering  the  nature  of  possession  and  its  ob- 
jects, trespass,  waste,  conversion,  etc 

Chapter   XI. 

NUISANCE:  Covering  kinds  of  nuisance,  as  pub- 
lic, private,  and  mixed,  continuing  and  legal- 
ized, parties  to  proceedings  against,  remedies, 
etc. 

Chapter  XII. 

NEGLIGENCE:  Covering  the  duty  to  exercise 
care,  what  is  commensurate  care,  common-law, 
contract  and  statutory  duties,  damages,  con- 
tributory negligence,  etc. 

Chapter    XIII. 

MASTER  AND  SEliVANT:  Covering  master's 
liability  to  servant  for  negligence,  master's 
duty  to  servant,  assumption  of  risk  by  serv- 
ant, various  kinds  of  risks,  fellow  servants, 
vice  principals,  etc. 

Chapter   XIV. 

COMMON  CARRIERS;  Covering  the  Bubject 
generally. 


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DY     n.     V^MIVir'DClL-L.I-     DI-AA^^rVf  TISES  ON   CONSTITUTIONAL  LAW.  JUDGMENTS.  ETC. 


TABLE   OF   CONTENTS. 


Chapter  I. 

NATURE  AND  OFFICE  OF  INTERPRE- 
TATION: Covering  definition  of  terms,  ob- 
ject of  interpretation,  rules  of  construction, 
and  office  of  judiciary. 

Chapter  II. 

OONSTRUCTTION  OF  CONSTITUTIONS: 
Covering  method  and  rules  of  construction, 
construction  as  a  whole,  common  law  and  pre- 
vious legislation,  retrospective  operation,  man- 
datory and  directory  provisions,  preamble  and 
titles,  extraneous  aids,  schedule,  stare  decisis, 
etc. 

Chapter   III. 

GENERAL  PRINCIPLES  OF  STATUTORY 
CONSTRUCTION:  Covering  literal  and  eq- 
uitable construction,  scope  and  purpose  of  the 
act,  casus  omissus,  implications  in  statutes, 
meaningless  statutes,  errors,  misprints,  svu^ 
plusage,  interpolation  of  words,   etc. 

Chapter  IV. 

STATUTORY  CONSTRUCTION;  PRE- 
SUjVIPTIONS:  Covering  presumptions  against 
exceeding  limitations  of  legislative  power,  un- 
constitutionality, injustice,  irrepealable  laws, 
implied  repeal  of  laws,  etc.,  presumptions  as 
to  public  policy,  as  to  jurisdiction  of  courts, 
etc. 

Chapter   V. 

STATUTORY  CONSTRUCTION;  WORDS 
AND  PHRASES.  Covering  technical  and 
popular  meaning  of  words,  commercial  and 
trade,  general  and  special,  relative  and  qual- 
ifying, and  pei-missive  and  mandatory  tenus; 
conjunctive  and  disjunctive  particles,  adopted 
and  re-enacted  statutes,  computation  of  time, 
etc. 

Chapter  VI. 

INTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  construction  as  a 
whole,  context,  title,  preamble,  interpretation 
clause,  etc. 

Chapter  VII. 

EXTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  admissibility  of  ex- 
trinsic aids,  statutes  in  pari  materia,  eon- 
temporary  history,  construction  and  usage, 
journals  of  legislature,  opinions  of  legislators, 
etc 

Chapter    VIII. 

INTERPRETATION  WITH  REFERENCE 
TO  COMMON  LAW:  Covering  statutes  af- 
firming, supplementing,  superseding  or  in 
derogation  of,  common  law. 


Chapter    IX. 

RETROSPECTIVE  INTERPRETATION: 
Covering  definition,  constitutional  considera- 
tions, vested  rights,  remedial  statutes,  and 
statutes  regulating  procedure. 

Chapter   X. 

CONSTRUCTION  OF  PROVISOS,  EXCEP- 
TIONS, AND  SAVING  CLAUSES:  Oot- 
ering  the  subject  generally. 

Chapter    XI. 

STRICT  AND  LIBERAL  CONSTRUCTION: 
Covering  penal  and  remedial  statutes,  stat- 
utes against  common  right,  against  frauds, 
and  of  limitation,  legislative  grants,  revenue 
and  tax  laws,  etc. 

Chapter  XII. 

MANDATORY  ANT)  DIRECTORY  PROVI- 
SIONS: Definitions  and  rules  covering  the 
subject  generally. 

Chapter   XIII. 

AMENDATORY  AJSID  AMENDED  ACTS: 
Covering  construction  of  amendments  and  of 
statute  as  amended,  identification  of  act  to  be 
amended,  amendment  by  way  of  revision,  etc 

Chapter   XIV. 

CONSTRUCTION  OF  CODES  AND  RE- 
VISED STATUTES:  Covering;  construction 
as  a  whole,  reference  to  original  statutes, 
change  of  language,  previous  judicial  construc- 
tion, etc. 

Chapter    XV. 

DECLARATORY  STATUTES:  Covering  defi- 
nition and  construction  in  general. 

Chapter    XVI. 

THE  RULE  OF  STARE  DECISIS  AS  AP- 
PLIED TO  STATUTORY  CONSTRUC- 
TION: Covering  the  general  principle,  re- 
versal of  constniction,  federal  courts  follow- 
ing state  decisions,  construction  of  statutes  of 
otSer  states,  etc. 

Chapter   XVTI. 

INTERPRETATION  OF  JUDICIAL  DECI- 
SIONS AND  THE  DO(JTRINE  OF  PREC- 
EDENTS: Cotering  the  nature  of  prece- 
dents; dicta;  stare  decisis;  the  force  of  prece- 
dents as  between  different  courts;  the  law  of 
the  case,  etc. 


1    VOLUME.      509    PAGES.      S3. 75.    DELIVERED. 


WEST  PUBLISHING  CO.,      - 
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(^^e  l^ornfiooft  ^ertee.) 


(^  5anb6ooft  of 

Q0aifmen(0  am  Cavvicva. 


TABLE    OF    CONTENTS. 


Chapter  I. 

IN  trENERAL:  Covering  definition  and  gen- 
eral principles  common  to  all  bailments; 
classification    of    bailments. 

Chapter  II. 

BAILMENTS  FOR  SOLE  BENEFIT  OP 
BAILOR:  Covering  depositum  and  man- 
datum,  creation,  rights  and  liabilities  of 
parties,   termination,    etc. 


Chapter   III. 

BAILMENTS  FOR  BAILEE'S  SOLE  BEN- 
EFIT: Commodatum.  creation,  rights  and 
liabilities  of  parties,  termination,  etc. 


Chapter  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
PLEDGES:  Covering  definition  of  pledge, 
creation,  title  of  pledgor,  rights  and  liabil- 
ities of  parties  before  and  after  default,  ter- 
mination, etc. 

Chapter    V. 

BAILMENTS  FOR  MUTUAL  BENEFIT— 
HIKINGr:  Locatio  or  hiring  defined:  estab- 
lishment of  relation;  rights  and  liabilities 
of  parties;  hiring  of  things  for  use:  hire  of 
labor  and  services;  warehousemen;  wharf- 
ingers; safe-deiK)sit  companies;  factors,  etc.; 
termination  of  relation,  etc 


Chapter  VT. 

INNKEEPERS:  Innkeeper  defined;  who  are 
guests;  commencement  of  relation:  duty 
to  receive  guest:  liability  for  guests'  goods; 
lien;  termination  of  relation;  liability  as 
ordinary  bailee,  etc. 

Chapter  VII. 

CARRIERS  OF  GOODS:  Common  carriers, 
essential  characteristics;  when  liability  at- 
taches; discrimination;  compensation;  lien: 
liability  as  insurers  and  as  ordinary  bailees: 
carriers  of  live  stock;  carriers  of  baggnire; 
contracts  and  notices  limiting  liability;  ter- 
mination of  lialiility:  eonneotiiig  carriers, 
etc.;  post-office  department;  private  car- 
riers. 

Chapter   VIII. 

CARRIERS  OF  PASSEN(;ERS:  Who  are 
passengers;  when  liability  attaches;  duty 
to  accept  passengers;  furnishing  equal  ac- 
commodations: tiekct  as  evidence  <if  pas- 
senger's rights;  right  to  make  regulations; 
injuries  to  passengers;  contracts  limiting 
liability;  termination  of  liability;  ejection 
frniii  vehicle:  oniiin'iting  carriers,  and  cov- 
ering the  subject  generally. 

Chapter    IX. 

ACTIONS  AGAINST  CARRIERS:  Actions 
against  carriers  of  goods  and  carriers  of 
passengers:  parties:  fcirm  of  action;  plead- 
ing;   evidence;    damages. 


1  VOLUME.     675  PAGES.     $3.75,  DELIVERED. 


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C995  (13) 


Zd^  S^^'^fi^'^'S  ^eriee,) 


♦  ♦^vr*4 


(gj  Rafter  ©enton  ^mii^, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF   CONTENTS. 


Part  l-ELEWENTARY  JURISPRUDENCE. 

CHAPTER   I. 

NATURE  OF  LAW  AND  THE  VARIOUS  SYSTEMS: 
Moral,  divine,  municipal,  international,  mari- 
time and  martial  law. 

CHAPTER    n. 

GOVERNMENT  AND  ITS  FUNCTIONS:  Covering 
sovereignty,  the  state,  the  constitution,  and  the 
forms  and  functions  of  government  generally. 

CHAPTER   m. 

GOVERNMENT  IN  THE  UNITED  STATES:  Its 
general  character,  sovereignty,  distribution  of 
powers,   citizenship,   etc. 

CHAPTER   IV. 

THE  UNWRITTEN  LAW:  The  Roman,  the  Canon 
and  the  Common  law. 

CHAPTER   V. 

EQUITT:  Nature  and  Jurisdiction  of  equltj;  max- 
ims. 

CHAPTER    VI. 

THE  WRITTEN  LAW:  RelaUon  to  unwritten  law; 
statutory  law  in  general. 

CHAPTER    VII. 

THE  AUTHORITIES  AND  THEIR  INTERPRETA- 
TION: The  rank  of  authorities,  rules  of  inter- 
pretation,  statutory  construction,   etc 

CHAPTER    Vni. 

PERSONS  AND  PERSONAL  RIGHTS:  Legal 
rights,  wrongs  and  remedies,  rights  in  rem  and 
in  personam,  status,  personal  security,  liberty, 
property,   constitutional  guaranties,  etc 

CHAPTER  IX. 

PROPERTY:  Covering,  ownership  and  possession; 
the  Feudal  system;  corporeal  and  incorporeal, 
real  and  personal,  property;    fixtures,   etc 

CHAPTER    X. 

CLASSIFICATION  OF  THE  LAW:  Substantlva 
and  adjective,  public  and  private  law,  etc 

Part  II— THE  SUBSTANTIVE  LAW. 

CHAPTER    XI. 

CONSTITUTIONAL  AND  ADMINISTRATIVE  LAW: 
Written  and  unwritten  constitutions,  essentials 
and  construction  of  constitutions;  administra- 
tive law,  etc. 

CHAPTER    XIL 

CRIMINAL  LAW:  Covering  its  general  nature, 
criminal  capacity,  classification  of  crimes,  pun- 
ishment,  etc. 

CHAPTER    XIII- 

THE  LAW  OF  DOMESTIC.  RELATIONS:  Cover- 
ing marriage  and  its  incidents,  parent  and  child, 
guardian  and  ward,   master  and  servant,   etc 


CHAPTER   XIV. 

CORPOREAL  AND  INCORPOREAL  HEREDITA- 
MENTS:   Covering   the   subject  generally. 

CHAPTER   XV. 

ESTATES  IN  REAL  PROPERTY:  Classification, 
estates  In  possession  and  In  expectancy ;  free- 
holds and  estates  less  than  freehold;  estates  in 
severalty,  in  joint  tenancy  and  in  common;  ab- 
solute and  conditional,  legal  and  equitable  es- 
tates ;     etc 

CHAPTER    XVI. 

TITLES  TO  REAL  PROPERTY:  Covering  title  by 
descent  and  by  purchase,  classification  and 
forms  of  deeds,  etc. 

CHAPTER    XVH. 

PERSONAL  PROPERTY:  Real  and  personal  chat- 
tels, ownership  of  personal  property,  acqtiisition 
of  title,   etc 

CHAPTER    XVIH. 

SUCCESSION  AFTER  DEATH:  Testate  and  Intes- 
tate succession,  escheat,  executors  and  adminis- 
trators,   etc 

CHAPTER    XIX. 

CONTRACTS:  Definition,  validity  and  classification 
of  contracts,  quasi  contracts,  etc 

CHAPTER    XX. 

SPECIAL  CONTRACTS:  Covering  contracts  of 
sale,  bailments,  negotiable  contracts,  suretyship. 
Insurance,    etc 


AGENCY: 


CHAPTER   XXL 

Covering  the  subject  generally. 


CHAPTER    XXH. 

COMMERCIAL  ASSOCIATIONS:  Covering  part- 
nerships, Joint  stock  companies,  voluntary  asso- 
ciations,  corporations,    etc 

CHAPTER    XXm. 

TORTS:  Covering  the  nature  and  elements  of  torts, 
proximate  and  remote  cause  and  specific  torts. 

Part  III— THE  ADJECTIVE  LAW. 

CHAPTER    XXIV. 

REMEDIES:  Extralegal  and  legal,  penal  and  dvll 
common  law  and  equitable,  ordinary  and  extraor- 
dinary remedies. 

CHAPTER    XXV. 

COURTS  AND  THEIR  JURISDICTION:  Coverlnt 
the  subject  generally. 

CHAPTER    XXVX 

PROCEDURE:  In  generaJ;  outlines  of  common 
law,   equity,  code,  and  criminal  procedure. 

CHAPTER   XXVII. 

TRIALS:    EJarly  forms,   trial  procedure,  evidence. 


1   VOL.     367   PAGES.     S3. 75,  DELIVERED. 


w 


EST   PUBLISHING   CO.,   St.  Paul,  Minn. 

C1112  (14) 


(€6e  J5*'^n6ooa  Series.) 


(^  '§ant>^oo^  of 

Cpe  San)  of  ©amage^; 


Author  of  "Bailments  and  Carriers." 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

DEFTNTTTONS  AND  GENERAL  PRINCTPLKS : 
Definition,  nature  and  theory  Of  damagea; 
wrong  and  damage;  analysis  of  legal  wrongs; 
elaasiflcation   of  damages. 

CHAPTER    EL 

(•OMINAi,  DAMAGES:  DefinlUon  &nd  general  na- 
ture. 

CHAPTER   m. 

COMPENSATORY  DAMAGES:  Definition;  proxi- 
mate and  remote  consequences;  direct  and  con- 
sequential losses;  avoidable  consequences;  cer- 
tainty of  damages;  profits;  entirety  of  demand; 
past  and  future  losses;  elements  of  compensa- 
tion; aggravation  and  mitigation  of  damagea; 
reduction  of  loss;  injuries  to  limited  interests, 
etc 

CHAPTER    IV. 

BONDS,  LIQUIDATED  DAMAGES  AND  ALTERNA- 
TIVE CONTRACTS:  Covrring  tlie  subject  gen- 
erally. 

CHAPTER   V. 

INTEREST:  Definition;  as  a  debt  and  as  damagea; 
interest  on  liquidated  and  unliquidated  de- 
mands; on  overdue  paper, — contract  and  stat- 
ute  rate;    compound   Interest;     etc. 

CHAPTER    VI. 

VALUE:  Definition;  how  estimated;  market  value; 
pretlum  affectionls;  value  peculiar  to  owner; 
time  and  place  of  assessment;  highest  Interme- 
diate  value;     etc. 

CHAPTER    VII. 

EXEMPLARY  DAMAGES:  In  general;  when  re- 
coverable; liability  of  principal  for  act  of  agent; 
etc 

CHAPTER    Vm. 

PLEADING  AND  PRACTICE:  Allegation  of  dam- 
age, the  ad  damrmm,  form  of  statement,  prov- 
ince of  court  and  jury,  etc. 


CHAPTER  IX. 

BREACH  OP  CONTRACTS  FOR  SALE  OP  GOODS: 
Damages  in  action  by  seller  for  non-acceptance 
and  non-payment;  damages  in  action  by  buyer 
for  non-delivery,  breach  of  warranty,  and  as  for 
conversion. 

CHAPTER    X. 

DAMAGES  m  ACTIONS  AGAINST  CARRIER: 
Carriers  of  goods, — refusal  to  transport,  non- 
delivery. Injury  In  transit,  delay,  consequential 
damages;  carriers  of  passengers, — injuries  to 
passenger  exemplary  damages,  mental  suHering, 
delay,  wrongful  ejection,  etc 

CHAPTER    XI. 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES:  Actions  by  sender  and  by  receiv- 
er; proximate  and  certain,  remote  and  specula- 
tive damages;  notice  of  purpose  and  importance 
of  message;  cipher  messages;  avoidable  conse- 
quences;   exemplary  damages;    etc 


CHAPTER    XH. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT: 
Pecuniary  losses;  mental  sufferins:  exemnlary 
damages;  Injury  to  deceased;  medical  and  fu- 
neral expenses;  meaning  of  pecuniary, — care  and 
support,  prospective  git  is  and  inheritances;  In- 
terest as  damages;  discretion  of  jury;  nominal 
damages,    etc 

CHAPTER    Xm. 

WRONGS  AFFECTJNG  REAL  PROPERTY:  Dam- 
ages for  detention  of  real  property;  trespass; 
nuisance;  waste;  contract  to  sell  real  property, 
— breach  by  vendor  or  vendee;  breach  of  cove- 
nants,   etc 

CHAPTER    XrV. 

BREACH  OF  MARRIAGE  PROMISE:  In  general, 
compensatory   damages,   exemplary   damages,  etc 


1  VOL    476  PAGES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  CO.,  5t.  Paul,  Minn. 


Cllll 


(15) 


It^i  i&c»mfiooS  ^eries.) 


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Q5g  (Edrf  J).  J5o;)ftm  ®.  (g.,  feE.  (gX. 


TABLE   OF   CONTENTS. 


Chapter  I. 

WHAT  IS  REAL,  PROPERTY:  Real  and 
pt'isuual  property,  fixtures,  equitable  conver- 
sion, personal  interests  in  land. 

Chapter   II. 

TENURE  AND  SEISIN. 

Chapter  HI. 

ESTATES  AS  TO  QUANTITY— FEB  SIM- 
PLE: Classification  of  estates,  freehold, 
fee-simple,  creation,  right  of  user  and  aliena- 
tion. 

Chapter  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
ESTATES  TAIL:  Classes,  origin,  crea- 
tion, incidents,  duration,  tenant  in  tail  aft- 
er possibility  of  issue  extinct,  estates  tail  in 
the  United  States,  quasi  entaiL 

Chapter  V. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
CONVENTIONAL  LIFE  ESTATES: 
Life  estates,  creation,  conventional  life  es- 
tates, incidents,  estates  per  autre  vie. 

Chapter  VI. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LEGAL  LIFE  ESTATES:  Estate  during 
coverture,  curtesy,  dower,  homestead,  fed- 
eral homestead  act. 

Chapter  VH. 

ESTATES  AS  TO  QUANTITY  (Contlnned)— 
LESS  THAN  FREEHOLD:  Estates  for 
years,  letting  land  on  shares,  tenancies  at 
will,  tenancies  from  year  to  year,  letting  of 
lodgings,  tenancies  at  sufferance,  licenses. 

Chapter   VIII. 

ESTATES  AS  TO  QUALITY  ON  CONDI- 
TION—ON LIMITATION:  Estates  on 
condition,  estates  on  limitation,  base  fees. 

Chapter   IX. 

ESTATES  AS  TO  QUALITY  (Continued)— 
MORTGAGES:  Parties,  nature,  form, 
rijihts  and  liabilities  of  mortgagor  and  mort- 
gagee, assignment  of  the  equity  of  redemp- 
tion, assignment  of  the  mortgage,  priority 
of  mortgages  and  other  conveyances,  regis- 
tration, discharge  of  a  mortgage. 


Chapter  Z. 

EQUITABLE  ESTATES:  Statute  of  nrnu, 
classification  of  trusts, — express,  implied, 
resulting,  constructive,- incident*  of  equita- 
ble estates,  charitable  trusts. 

Chapter    XI. 

ESTATES  AS  TO  TIME  OF  ENJOYMENT 
—FUTURE  ESTATES:  Reversions,  possi- 
bilities of  reverter,  remainders,  rule  in  Shel- 
ley's Case,  future  uses,  springing  uses, 
shifting  uses,  executory  devises,  incidents 
of  future   estates. 

Chapter  XH. 

ESTATES  AS  TO  NUMBER  OF  OWNERS 
^JOINT  ESTATES:  Joint  tenancies,  ten- 
ancies in  common,  estates  in  coparcenary, 
estates  in  entirety,  estates  in  partnership, 
incidents  of  joint  estates,  partitioa. 

Chapter   XIII. 

INCORPOREAL  HEREDITAMENTS: 
Easements,  creation,  classification,  inci- 
dents, destruction,  rights  of  way,  highways, 
light  and  air,  lateral  and  subjacent  sup- 
port, party  walls,  easements  in  water,  prof- 
its a  prendre,  rents,  franchises. 

Chapter   XIV. 

LEGAL  CAPACITY  TO  HOLD  AND  CON- 
VEY REALTY:  Infants,  persona  of  un- 
sound mind,  married  women,  aliens,  corpo- 
rations. 

Chapter   XV. 
RESTRAINTS      ON      ALIENATION:       Re- 
straints imposed  by  law,  restraints  in  favor 
of  creditors,  restraints  imposed  in  creation 
of  estate. 

Chapter   XVI. 

TITLE:  Acquisition  of  title  by  state  and  pri- 
vate persons,  grant  from  state,  conveyan- 
ces, common-law  convevances,  conveyances 
under  statute  of  uses,  modern  statutory  con- 
veyances, registered  titles,  requisites  of 
deeds;  covenants  for  title,  seisin,  against 
incumbrances,  warranty,  further  assurance; 
estoppel,  adverse  possession,  accretion,  de- 
vise, descent,  judicial  process;  conveyances 
under  licenses,  under  duress;  tax  title*,  em- 
inent domain. 


1  VOL.     689  PAGES.     $3.76,  DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


C1191a 


(IG) 


I 


(g  §anb6oo6  of 
C^e  Batt?  of  (persona  ani  ©omeaftc  ^datiom, 


TABLE    OF 
PART  I. 

BUSBAND  AND  WIFH. 
Chapter   I. 

MARRIAGE:  Covering  definition  and  essen- 
tials; capacity  of  parties;  reality  of  cfjn- 
eent;  formalities  in  celebration:  annul- 
ment and  avoidance;  validating  acta;  con- 
flict of  laws,  etc. 

Chapter   H. 

PERSONS  OF  THE  SPOUSES  AS  AF- 
FECTED   BY    COVERTURE:      Ooverinf 

rights  inter  se;  crimes  and  torts  of  married 
women;  crimes  aud  torts  as  between  hu»- 
band  and  wife;  torts  against  married  wo- 
men; actions  for  alienation  of  affections; 
crim.  con.,  etc. 

Chapter  III. 

RIGHTS  IN  PROPERTY  AS  AFFECTED 
BY  COVERTURE:  Covering  wife's  earn- 
ings;  wife's  choses  in  action  and  in  posses- 
sion; wife's  chattels  real;  administration 
of  wife's  estate;  equitable  and  statutory 
separate  estate;  community  property;  cur- 
tesy;   dower;    estates  by  the  entirety,   etc. 

Chapter  IV. 

CONTRACTS,  CONVEYANCES,  ETC., 
AND  QUASI-CONTRACTUAL  OBLI- 
GATIONS: Covering,  inter  alia,  husband's 
liability  for  wife's  necessaries,  antenuptial 
debts,  and  funeral  expenses;  wife  as  a  sole 
trader;  wife  as  husband's  ei^ent;  convey- 
ances, sales,  and  gifts  by  the  wife,  etc. 

Chapter  V. 

WIFE'S  EQUITABLE  AND  STATUTORY 
SEPARATE  ESTATE:  Covering  their 
nature;  jus  disponendi;  power  to  charge  by 
contract,  etc. 

Chapter  VI. 

ANTENUPTIAL  AND  POSTNUPTIAL 
SETTLEMENTS:  Covering  the  subject 
generally,  Including  marriage  as  a  consid- 
eration; the  statute  of  frauds;  validity 
against  creditors  and  purchasers,  etc. 

Chapter  VII. 

SEPARATION  AND  DIVORCE:  Covering 
agreements  for  separation;  jurisdiction  to 
grant  divorce;  grounds  for  divorce;  de- 
fenses in  actions  for  divorce;  legislative  di- 
Torce,  etc. 

PART  II. 

PARENT  AND  CHILD. 
Chapter    VIII. 
LEGITIMACY,      ILLEGITIMACY,      AND 
ADOPTION:    Covering  legitimacy  of  chil- 
dren; adoption  of  children;  status  of  illegiti- 
mate children. 


CONTENTS. 

Chapter   IX. 

DUTIES  AND  LIABILITIES  OF  PAR- 
ENTS: Maintenance,  protection,  and  edu- 
cation of  child;  allowance  out  of  child's 
estate;  child  as  parent's  agent;  parent's  lia- 
bility for  crimes  and  torts  ©f  cnild,  etc. 

Chapter    Z. 

RIGHTS  OF  PARENTS  AND  OF  CHII, 
DREN:  Right  to  custody;  service  and 
earnings  of  child;  correct'.on  of  child; 
emancipation  of  children;  action  by  parent 
for  injuries  to  child;  gifts,  contracts,  and 
conveyances  between;  advancements;  duty 
to  eupiK)rt  parent;    domicile  of  cliild,  etc 

PART  ILL 

GUARDIAN  AND  WARD. 
Chapter    XI. 

GUARDIANS  DEFINED  —  SELECTION 
AND  APPOINTMENT:  Covering  natural 
guardians;  testamentary  guardians;  statu- 
tory guardians;  guardians  by  estoppel; 
guardians  of  insane  persons;  guardians  ad 
litem,  etc. 

Chapter  XH. 

RIGHTS,  DUTIES,  AND  LIABILITIES  OF 
GUARDIANS:  Right  to  custody  and  serv 
ices  of  ward;  maintenance  of  ward)  change 
of  ward's  domicile;  management  of  ward's 
estate;  foreign  guardians;  inventory  and 
accounts;  compensation  of  guardian)  trans- 
actions between  guardian  and  ward,  etc. 

Chapter   XIH. 

TERMINATION  OF  GUARDIANSHIP  - 
ENFORCING  GUARDIAN'S  LIABILI- 
TY:   Covering  the  subject  generally. 

PART  IV. 

INFANTS.    PERSONS    NON    OOMPOTB8 

MENTIS,  AND  ALIENS. 

Chapter   XTV. 

INFANTS:  Covering  contracts  of  infants.  In- 
cluding ratification  and  disaffirmance;  lia- 
bilities for  necessaries,  etc.;  capacity  to 
hold  office,  to  make  a  will,  and  as  witness- 
es; liability  for  torts  and  crimes;  infanta 
as  parties  to  actions,  etc. 

Chapter  XV. 
PERSONS  NON  COMPOTBS  MENTIS 
AND  ALIENS:  Covering  insane  and 
drunken  persons,  their  contracts,  their  lia- 
bility for  torts  and  crimes  and  testament- 
ary capacity,  etc. 

PART  V. 

MASTER  AND  SERVANT. 
Chapter   XVI. 

CREATION  AND  TERMINATION  OF  RE- 
LATION: Remedies  for  breach  of  con- 
tract; rights  and  duties  and  liabilities  inter 
se  and  as  to  third  persons,  eta. 


C1248 


1   VOLUME.     589  PAGES.     $3.76,  DELIVERED. 


WEST  PUBLISHING  COMPANY,  ST.  PAUL,  MINN. 

(17) 


(3n  t^e  l^ornfioofi  ^eneej 


SeW V" .  (B;ectt^ot0  anb  (^bminie^ra^ore 

By  Simon  Grcenleaf  groswell,  ^?Lt°^t°Sa;^^'^rt;^^^"*' 


TABLE  OF  CONTENTS. 


Part  I.— DEFrNITIONS  AND  DIVISION  OF  SUBJECT. 

Chapter   I. 

DEFINITIONS  AND  DIVISION  OF  SUBJECT:  Ex- 
ecutors and  admlnlstratorB  defined;  analysis  of 
book. 

Part  II.— APPOINTMENT  AND  QUALIFICATIONS. 

Chapter  II. 

APPOINTMENT  IN  COURT:  Necessity  of  adminis- 
tration; necessity  of  appointment  by  court;  ju- 
risdiction; conclusiveness  of  decrees  of  probate 
courts,   etc 

Chapter  HI. 

PLACE  AND  TIME  OF  APPOINTMENT  AND  REQ- 
UISITES THEREFOR:  Place  of  appointment; 
property  necessary  to  give  jurisdiction;  time  limit 
for  application. 

Chapter  IV. 

WHO  MAT  CLAIM  APPOINTMENT  A3  EXECU- 
TOR: Desig;natlon  in  will;  appointment  by  dele- 
gation; executor  of  executor;  non-assignability 
of  office. 

Chapter  V. 

WHO  MAT  CLAIM  THE  RIGHT  TO  ADMINISTER: 
Principle  -which  governs  the  right;  order  of  pre- 
cedenc«;  creditors;  preferences  among  kindred, 
etc. 

Chapter  VI. 

DISQUALIFICATIONS  FOR  THE  OFFICE  OP  EX- 
ECUTOR OR  ADMINISTRATOR:  Infants,  mar- 
ried women.  Idiots,  lunatics,  convicts,  corpora- 
tions; poverty  and  insolvency;  absolute  and  dis- 
cretionary incompetency,  etc. 


Chapter  VII. 

ACCEPTANCE    OR    RENUNCIATION: 
Implied  renunciation. 


Express    or 


Chapter  VIII. 

FROCEEDINQS  FOR  APPOINTMENT  OF  EXECU- 
TORS AND  ADMINISTRATORS:      In  general. 

Chapter  IX. 

SPECIAL  KINDS  OF  ADMINISTRATIONS:  Admin- 
istration cum  testamento  annexo;  de  bonis  non; 
during  minority;  pendente  lite;  public  adminis- 
trator;   executor  de  son  tort,  etc 

Chapter  X. 

FOREIGN  AND  INTERSTATE  ADMINISTRATION: 
Validity  of  foreign  wills;  territorial  limit  of  va- 
lidity of  letters;  principal  and  ancillary  adminis- 
tration;   conflict  of  laws;    comity,  etc 

Chapter  XI. 

JOINT  EXECUTORS  AND  ADMINISTRATORS:  Na- 
ture of  estate;  rights,  powers  and  liabilities;  rem- 
edies between,  etc. 

Chapter  XIL 

ADMINISTRATION  BONDS:  Corerin*  the  mbject 
generally. 

I  Vol.    696  Pages. 
i3-75.  Net,  Delivered. 
CI  395 


Part  III.— POWERS  AND  DUTIES. 
Chapter  XIII. 

INVENTORT— APPRAISEMENT— NOTICE  OF  AP- 
POINTMENT:   Covering  the  subject  generally. 

Chapter  XIV. 

ASSETS  OF  THE  ESTATE:  What  are  assets;  fix- 
tures; emblements;  animals;  ownership  at  time  or 
death,   etc. 

Chapter  XV. 

MANAGEMENT  OF  THE  ESTATE:  Rights  and  lia- 
bilities of  executors  or  administrators;  collection 
and  Investment  of  assets,  taxation,  etc 

Chapter   XVI. 

SALES  AND  CONVEYANCES  OF  PERSONAL  OR 
REAL  ASSETS:  Covering  sales  in  general,  sales 
of  land  to  pay  debts,   power  to  mortgage,   etc. 

Chapter  XVII. 

PATMENT  OF  DEBTS  AND  ALLOWANCES— IN- 
SOLVENT ESTATES:  Covering  priority  of  debts, 
widow's  allowance,  expenses  of  funeral  and  last 
illness,  costs  of  administration;  presentation  and 
allowance  of  claims.  Insolvent  estates,  etc. 

Chapter  XVIIL 

PATMENT  OP  LEGACIES:  Legacies  subordinate  to 
debts;  ademption  and  abatement  of  legacies; 
priority  between  legacies  and  contingent,  future 
or  unknown  debts;  payment  of  legacies.  Interest, 
etc 

Chapter  XIX. 

DISTRIBUTION  OF  INTESTATE  ESTATES:  Order, 
time  and  mode  of  distribution;  rights  of  husband, 
widow  and  next  of  kin,  right  of  presentation, 
payment  of  distributive  share,  etc. 

Chapter  XX. 

ADMINISTRATION  ACCOUNTS:  Time  and  manner 
of  accounting,  charges  and  allowances  In  account; 
commissions  and  compensation,  etc 

Part  IV.— TERMINATION  OF  OFFICE. 

Chapter  XXI. 

REVOCATION  OF  LETTERS— REMOVAL— RESIG- 
NATION:   Covering  the  subject  generally. 

Part  v.— REMEDIES. 
Chapter  XXII. 

ACTIONS  BT  EXECUTORS  AND  ADMINISTRA- 
TORS: Power  to  sue  before  probate  or  grant  of 
letters;  survival  of  actions;  actions  In  personal 
and  representative  capacity,  etc. 

Chapter  XXIII. 

ACTIONS  AGAINST  EXECUTORS  AND  ADMIN- 
ISTRATORS: Survival  of  actions;  particular  lia- 
bilities; attachment  and  garnishment;  judgments, 
executions  and  other  proceedings;  order  of  liablU 
Ity  of  assets;  suits  on  bonds,  etc. 

Chapter  XXIV. 

STATUTE  OF  LIMITATIONS— SET-OFF:  General 
and  special  statute  of  limitations,  set-off,  etc 

Chapter  XXV. 

BJVIDBNCE  AND  COSTS:  Coverln»  the  lubject 
generally. 


me$t  Publi$bind  €0.,  $t.  Paul,  minn. 

(18) 


(g  l^anbBooa  of 

Sfe  Bai»  of  ^riM^e  Corf>ora(iott0. 

By  Wn.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 


SECOND  EDITION:      By  FRANCIS  B.  TIFFANY. 


TABLE  OF   CONTENTS. 


Chapter   I. 

OP    THE!    NATURE    OF    A    CORPORATION: 

Definition  and  creation;  limited  powers;  attri- 
butes and  incidents;  corporation  as  a  person, 
citizen,  etc. ;  kinds  of  corporations,  etc. 

Chapter  II. 

CREATION  AND  CITIZENSHIP  OP  CORPO- 
RATIONS: Covering  the  subject  genei'ally,  in- 
cluding power  to  create;  general  and  special 
laws;  ratification  of  claim  to  corporate  exist- 
ence; agreement  between  corporation  and  state 
— acceptance  of  charter;  agreement  between 
corporators  and  corporation ;  [)uri  lose  of  incorpo- 
raiion;  corporate  name,  residence,  and  citizen- 
ship of  corporation;  extension  of  charter;  proof 
of  corporate  existence,  etc. 

Chapter  III. 

EFFECT  OF  IRREGULAR  INCORPORATION: 
Corporations  de  facto;  estoppel  to  deny  corpo- 
rate existence;  liability  of  stockholders  as  part- 
ners. 

Chapter  IV. 

RELATION  BETWEEN  CORPORATION  AND 
ITS  PROMOTERS:  Liability  for  expenses  and 
services  of  promoters;  liability  on  contract  by 
promoti^rs;  liability  of  promoters  to  corporation 
and  stockholders,  etc. 

Chapter  V. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS: Express  and  implied  powers;  con- 
struction of  charter ;  power  to  bold  realty ;  con- 
tracts and  convej'ances,  etc. 

Chapter  VI. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TION S  (Continued)  t    The  doctrine  of  ultra  vires. 

Chapter  VII. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued):  Responsibility  for  torts 
and  crimes;  contempt  of  court. 

Chapter  VIII. 

THE  CORPORATION  AND  THE  STATE: 
Charter  as  a  contract;  police  power  of  the  state; 
power  of  eminent  domain;  repeal  and  amend- 
ment of  charter ;  taxation  of  corporation. 


Chapter  IX. 

DISSOLUTION  OF  CORPORATIONS:  How  ef- 
fected; equity  jurisdiction;  efiect  of  dissolu- 
tion, etc. 

Chapter  X. 

MEMBERSHIP  IN  CORPORATIONS:  Capital 
stock  and  capital;  nature  of  corporate  shares; 
certificates  of  stock ;  subscripti(jns  to  stock;  re- 
lease and  discharge  of  subscriber,  etc.,  covering 
the  subject  generally. 

Chapter  XI. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued): Right  to  inspect  books  and  papers;  right 
to  vote;  profits  and  dividends;  increase  of  cap- 
ital; preferred  stock ;  watered  and  bonus  stock; 
action  by  stockholders  for  injuries  to  corpora- 
tion ;  expulsion  of  members,  etc. 

Chapter  XII. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :     Covering  transfer  of  shares. 

Chapter  XIII. 

MANAGEMENT  OF  CORPORATIONS— OFFI- 
CERS AND  AGENTS:  Powers  of  majority  of 
stockholders;  by-laws;  stockholders'  meetings; 
election  and  appointment  of  (■Iticers  and  agents: 
powers  and  liabilities  of  offloeis  and  agents;  re- 
moval of  officers  and  agents,  etc.,  covering  the 
subject  generally. 

Chapter  XIV. 

RIGHTS  AND  REMEDIES  OF  CREDITORS: 
Relation  between  creditors  and  the  corporation, 
covering,  inter  alia,  property  subject  to  execu- 
tion; assets  as  a  trust  fund  for  creditors;  fraud 
ulcnt  conveyances;  assignment  for  benefit  of 
creditors;  preferences;  dissolution,  injunction, 
and  receivers;  relation  between  creditors  and 
stocklioltiers,  coverin'^,  inter  alia,  statutory  lia- 
bility of  stockholders;  contribution  between 
stockholders,  etc. ;  relation  between  creditors 
and  officers,  covering  preferences  to  officers  who 
are  creditors;  statutory  liability  of  officers. 

Chapter  XV. 

FOREIGN  CORPORATIONS:  Covering  the  sub- 
ject generally. 

APPENDIX. 

The  logical  conception  of  a  corporation. 


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TABLE  OF  CONTENTS. 


Chapter   I.  1 

DEFINITION  AND  ESTABLISHMENT  OF 
RELATION:  What  constitutes  a  partner- 
ship; tests  of  intention ;  sharing  profits;  pro- 
moters of  corporations;  defective  corpora- 
tion; delectus  personarum;  subpartnerships ; 
holding  out,  etc. 

Chapter   H. 

KINDS  OF  PARTNERSHIPS  AND  PART- 
NERS: Classification  of  partnerships  and 
partners;  universal,  general,  and  special  part- 
nerships; limited  partnerships;  joint-stock 
companies;  mining  partnerships;  trading 
and  nontrading  partnerships,  etc. 

Chapter  HI. 

CHARACTERISTIC         FEATURES         OF 
PARTNERSHIPS:     Legal   and  mercantile 
■     view  of  a  firm;    partnership  name;    partner- 
ship property;   partnership  capital;   shares  in 
partnerships,  etc. 

Chapter  IV. 

IMPLIED  RIGHTS  AND  LIABILITIES  IN- 
TER SE:  Participation  in  management; 
rights  and  powers  of  majority;  duty  to  ex- 
ercise care,  skill,  and  good  faith;  right  to 
compete  with  firm;  compensation  for  serv- 
ices; interest  on  balances;  partner's  lien; 
^vision  of  profits,  etc 

Chapter  V. 

ARTICLES  OF  PARTNERSHIP:  Purpose 
and  effect;  rules  of  construction;  usual 
clauses  in  articles,  etc.;  covering  the  subject 
generally. 

Chapter  VI. 

RIGHTS  AND  LIABILITIES  AS  TO 
THIRD  PERSONS:  Express  and  implied 
authority  of  partner  to  bind  firm;  particu- 
lar powers;  liability  of  partners  to  third 
persons;  incoming  partners;  assumption  of 
debts;  rights  in  firm  and  separate  property. 
etc 


Chapter  VH. 

ACTIONS  BEa^WEEN   PARTNERS:    Action 

on  partnership  claim  or  liability,  at  law,  in 
equity,  or  under  the  code;  actions  between 
firms  with  a  common  member;  actions  on 
individual  obligations;  equitable  actions  in 
general;  accounting  and  dissolution;  spe- 
cific performance;    injunction;   receiyere,  etc. 


Chapter   VIH. 

ACTIONS  BETWEEN  PARTNERS  AND 
THIRD  PlRSONS:  Parties  in  actions 
by  and  against  partners;  effect  of  changes 
in  firm;  disqualification  of  one  partner  to 
sue;    action  in  firm  name,  etc. 


Chapter   IX. 

DISSOLUTION:  Causes  of  dissolution;  part- 
nerships for  a  definite  and  indefinite  time; 
causes  subject  to  stipulation ;  causes  not  sub- 
ject to  stipulation;  causes  for  which  a  court 
will  decree  a  dissolution;  consequences  of 
dissolution  as  to  third  persons  and  as  to 
partners. 

Chapter    X. 

LIMITED   PARTNERSHIPS:     Covering   the 

subject  exhaustively,  including,  inter  alia, 
definition  and  establishment  of  relation; 
general  and  special  members;  certificate; 
contribution  of  general  and  special  partners; 
name;  sign;  rights  and  liabilities;  with- 
drawal, alteration,  and  interference;  insol- 
vency; termination  of  relation;  change  from 
limited  to  general  liability;    actions,  etc 


Chapter    XI. 

.TOINT-STOCK  COMPANIES:  Definition  and 
nature;  transfer  of  shares;  powers  of  mem- 
bers and  ofiicers;  rights  and  liabilities;  ac- 
tions, etc. 


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(Bc\uit^  (pfeabing. 


Anthor  o(   "  Shipman's  Coramon-Law  Pleading.' 


TABLE    OF    CONTENTS. 


Cliapter   I. 

EQUITY  PLEADING  IN  GENERAL:  Cov- 
ermg  nature  and  Bcope  of  pleadings  in  eq- 
uity 

Olvapter  H. 

PARTIES:  Giving  general  rules,  and  covering 
classification  of  parties  as  necessary,  proper 
but  not  indispensable,  formal,  and  parties 
with  separable  interests;  parties  complain- 
ant and  respondent;   joinder,  etc 

CliapteT  m. 

PROCEEDINGS  IN  AN  EQUITABLE 
SUIT:  Indicating  the  steps  usually  tiiken 
and  the  method  of  procedure,  as  the  bill, 
appearance,  proceedings  on  default;  th« 
modes  of  defense,  by  disclaimer,  demurrer, 
plea,  or  answer;  the  replication;  interlocu- 
tory proceedings,  as  amendment,  injunc- 
tions, production  of  documents,  interven- 
tion: the  evidence,  hearing,  and  decree;  th« 
•onection,  reversal,  or  enforcement  of  de- 
crees, ete. 


Chapter  IV. 

BILLS  IN  EQUITY:  Oovering  deflnWon  and 
classification,  and  discussing  original  bills, 
and  bills  not  original,  with  a  summary  of 
the  general  roles  oovering  the  bill,  etc 

Chapter  V. 

THE  DISCLAIMER:  Definition,  nature,  and 
use. 

Chapter  VI. 

DEMURRER:  Definition;  form  of  demurrer, 
and  grounds  therefor;  orders  stistaining  or 
overruling  demurrer,  etc 

Chapter  VH. 

THE  PLEA:  Definition,  natura,  and  office  of 
pleas,  grounds  for  pleas,  their  form,  support- 
ing answers,  etc. 

Chapter  VilL 

THE  ANSWER:  Nature  and  office,  Bub.-rtance 
ami  effect,  of  the  answer,  and  the  character- 
istics thereof. 

Chapter  IX. 
THE  REPLICATION. 


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QBj  3o6n  3*8  (JtlcQKefOtj,  (^.  (St.,  &£.  (g., 

Author  of  "Common-Law  Pleading,"  etc 


TABLE    OF    CONTENTS. 


CHAPTER   I. 

INTRODUCTORY:     Definitions;     origin,   place 

and  function  of  the  law  of  evidence,  etc. 

CHAPTER   II. 

JUDICIAL  NOTICE:  The  doctrine  in  general; 
facts  which  may  or  must  be  noticed. 

CHAPTER   III. 

QUESTIONS  OF  LAW  AND  QUESTIONS 
OF  FACT:  Definitions;  province  of  court 
and  jury. 

CHAPTER   IV. 

BURDEN  OF  PROOF:  Burden  of  proof  never 
shifts;  burden  of  proceeding  may  shift;  ver- 
dict, etc. 

CHAPTER   V. 

PRESUMPTIONS:  Presumptions  as  rules  of 
law;  prima  facie,  conclusive,  spurious,  and 
conflicting  presumptions. 

CHAPTER   VI. 

AD^SIISSIONS:  Direct  and  indirect  admissions; 
admissibUity;  civil  and  criminal  cases;  ef- 
fect of  admission,  etc. 

CHAPTER   VII. 

CONFESSIONS:  Defined;  voluntary  or  under 
influence;  may  be  explained;  evidence  there- 
from, etc. 

CHAPTER  VIII. 

MATTERS  EXCLUDED  AS  UNIMPOR- 
TANT. OR  AS  MISLEADING,  THOUGH 
LOGICALLY  RELEVANT:  Logical  and  le- 
gal relevancy,  rule  excluding;  classification 
of  matter;  proof  of  diverse  matters  consid- 
ered. 


CHAPTER   IX. 
CHARACTER:    General  rule;    when  material; 
how  proved,  etc. 

CHAPTER   X. 

OPINION  EVIDENCE:  Matter  of  opinion  dis- 
tinguished from  matter  of  fact;  general  rule, 
exceptions:  matters  forming  subject  of  ex- 
pert opinion,  etc. 

CHAPTER  XI. 

HEARSAY:  General  ru!e;  exceptions;  real 
and  appaient;  cl.tsses  of  statements  admit- 
ted because  of  the  diflBculty  of  other  proof. 

CHAPTER   XII. 

WITNESSES:  Rules  excluding  witnesses;  per- 
sons excluded;  privilege  distinguished  from 
disqualification;    privileged  persons. 

CHAPTER   XIII. 

EXAMINATION  OF  WITNESSES:  Ordinary 
method;  refreshing  memory;  direct  and 
cross  examination;  leading  questions;  im- 
peaching witness,  etc. 

CHAPTER   XIV. 

WRITINGS:  B^st  evidence  rule;  production  of 
documents;  authentication  of  documents; 
proof  of  handwriting;  evidence  affecting  the 
contents  of  documents,  etc. 

CHAPTER   XV. 

DEMURRERS  TO  EVIDENCE:  Definition; 
when  joinder  compelled;  final  form,  etc. 


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tf}<t  Saw  of  (Uegfigencet 


TABLE    OF   CONTENTS. 


Chapter    I. 

DEFINITION  AND  ESSENTIAL  ELE- 
MENTS :  Considering  also  proximate 
cause ;  efficient,  intervening,  or  co-operating 
cause,  etc. 

Chapter    H. 

CONTRIBUTORY  NEGLIGENCE:  Defini- 
tion and  general  rule ;  degree  of  care  ;  as- 
sumption of  risk  and  legal  status  of  plain- 
tiff; plaintiff's  negligence;  negligence  of 
third  persons:  imputed  negligence;  phys- 
ical condition  as  an  element ;  evidence, 
pleading,  and  questions  of  fact. 

Chapter   III. 

LIABILITY   OF   MASTER   TO    SERVANT: 

Duty  of  master,  as  to  appliances,  selecting 
servants,  rules,  etc. ;  limitation  of  master's 
duty  ;  ordinary  risks,  known  dangers,  fel- 
low servants;  concurrent  and  contributory 
negligence. 

Chapter    IV. 

LIABILITY  OF  MASTER  TO  THIRD  PER- 
SONS :  Relationship ;  independent  con- 
tractor;  willful  torts  of  servants,  and  inde- 
pendent torts. 

Chapter   V. 

COMMON  CARRIERS  OF  PASSENGERS: 

The  relation  of  passenger  and  carrier ;  ter- 
mination of  relation:  who  are  passengers; 
the  contract,  ticket,  compensation,  etc. 

Chapter    VI. 

CARRIERS  OF  GOODS:  Definition;  liabiU- 
ty  for  loss  or  damage  ;  liability  for  delay  ; 
contracts  limiting  liability  in  special  states ; 
limiting  time  and  manner  of  making  claims; 
construction  of  limiting  contracts ;  actual 
notice ;  special  classes  of  goods,  as  live 
stock  and  baggage  ;  beginning  and  termina- 
tion of  liability  ;    excuses  for  nondelivery. 


Chapter   VTL 

OCCUPATION  AND  USE  OF  LAND  AND 
WATER :  Duties,— general  rule ;  lateral 
support ;  dangerous  premises  ;  landlord  and 
tenant,  and  condition  of  rented  premises; 
water  courses ;  dams ;  obstruction  of  navi- 
gable streams,  etc. 

Chapter    VIII. 

DANGEROUS  INSTRUMENTALITIES : 

Railroads  ;  degree  of  care  exacted  ;  signals  ; 
care  required  of  persons ;  collisions  with 
persons  and  with  animals;  fires;  inten- 
tional, accidental,  and  railroad  fires ;  ani- 
mals ;  communicating  disease  ;  firearms,  ex- 
plosives, poisons,  etc. 

Chapter    IX. 

NEGLIGENCE  OF  ATTORNEYS.  PHYSI- 
CIANS,     AND      PUBLIC      OFFICERS: 

Negligence  of  attorneys ;  damage  essential 
to  liability;  negligence  of  physicians;  bur- 
den of  proof,  evidence,  pleading,  etc.  ;  negli- 
gence of  public  and  governmental  officers, 
ministerial  officers,  sheriffs  and  constables, 
notaries  public,  clerks  of  court,  and  registers 
of  deeds. 

Chapter    X. 

DEATH  BY  WRONGFUL  ACT  :  Right  of  ac- 
tion ;  instantaneous  death,  proximate  cause 
of  death,  beneficiaries  ;  damages  ;  pleading 
and  evidence ;  limitation  of  commencement 
of  action. 

Chapter   XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPO- 
RATIONS :  Public  and  private  corpora- 
tions ;  right  of  action ;  liability  for  inju- 
ries ;  alteration  of  grades ;  acts  of  officers 
or  agents  ;  acts  ultra  vires  ;  judicial  or  leg- 
islative duties ;  conflagrations  and  destruc- 
tion by  mobs  ;  public  health  and  sanitation  ; 
quasi  municipal  corporations. 


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Editor  3d  Edition  Collier  on  Bankruptcy,  Co-Editor  American  Bankruptcy  Reports, 
Eaton  and  Greene's  Negotiable  Instruments  Law,  etc. 


TABLE  OF  CONTENTS. 


ORIGIN  AND  HISTORY:  Showing  distinc- 
tioa  between  law  and  equity,  equity  juris- 
diction in  the  United  States,  etc 

GENERAL  PRINCIPLES  GOVERNING 
THE  EXERCISE  OF  EQUITY  JURIS- 
DICTION: Covering  adequate  remedy  at 
law,  multiplicity  of  suits,  etc. 

MAXIMS:  With  a  separate  discussion  of 
each. 

PENALTIES  AND  FORFEITURES:  Cov- 
ering rules  governing  the  determination  as 
to  liquidated  damages  or  penalty,  statutory 
penalties  and  forfeitures,  etc. 

PRIORITIES  AND  NOTICE:  Covering 
equal  and  superior  equities,  notice,  etc. 

BONA  FIDE  PURCHASERS  WITHOUT 
NOTICE:  The  doctrine  and  its  applica- 
tion. 

EQUITABLE  ESTOPPEL:  Essential  ele- 
ments, operation  of  estoppel,  etc. 

ELECTION:  The  doctrine  and  its  applica- 
tion;   ascertainment  of  values,   etc. 

SATISFACTION  AND  PERFORMANCE: 

Satisfaction    of   debts,    of    legacies,    of    por- 
tions, etc.;    parol  or  extrinsic  evidence,  etc. 

CONVERSION  AND  RECONVERSION: 
The  doctrine;  effect  of  conversion;  total  or 
partial  failure  of  purposes. 

ACCIDENT  as  a  ground  of  equitable  relief. 

MISTAKE  as  a  ground  of  equitable  relief. 


FRAUD  as  a  ground  of  equitable  relief;  ac- 
tual and  constructive  fraud,  etc. 

EQUITABLE  PROPERTY:  Trusts  gener- 
ally;  express  trusts,  etc. 

IMPLIED  TRUSTS:  Resulting  and  con- 
structive trusts,  etc. 

POWERS,  DUTIES,  AND  LIABILITIES 
OF  TRUSTEES:  Acceptance;  breach  of 
trust;    accounts,  etc. 

MORTGAGES:  The  common-law  and  equi- 
table doctrines  as  to  mortgages  and  pledges. 

EQUITABLE  LIENS:  Arising  from  consid- 
erations of  justice,  from  charges  by  will  or 
deed,  etc. 

ASSIGNMENTS:  Of  chosos  in  action,  pos- 
sibilities and  expectancies,  etc 

REMEDIES  SEEKING  PECUNIARY  RE- 
LIEF: Contribution,  exoneration,  defense, 
etc. 


SPECIFIC      PERFORMANCE: 
for  same,  defenses,  variance,  etc. 


Contracts 


INJUNCTION: 

sion. 


Classification,    with    discus- 


PARTITION,  DOWER,  AND  ESTABLISH- 
MENT OF  BOUNDARIES:  Jurisdiction, 
procedure,  etc 

REFORMATION,  CANCELLATION,  AND 
CLOUD  ON  TITLE:  Parties,  evidence, 
statute  of  frauds,  etc. 

ANCILLARY  REMEDIES:  Rules  respect- 
ing discovery,  examination  of  witnesses,  in- 
terpleader, receivers,  etc 


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TABLE  OF  CONTENTS. 


The  Origin  and  History  of  ttie  Admiralty,  and 
its  Extent  in  the  United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sub- 
ject Matter. 

General  Avei*age  and  Marine  Insurance. 

Bottomry    and    Respondentia ;     and    Liens    for 
Supplies,  Repairs,  and  Other  Necessaries. 

Stevedores'  Contracts,   Canal  Tolls,    and  Toiw- 
age  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act 
of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries 
Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels.  Special  Oircum- 
Btancea,  and  General  Precautions. 

Damages  in  Collision  Cases. 

Vessel   Ownership   Independent  of  the   Limited 
Liability  Act. 


Rights  and  Liabilities  of  Owners  as  Affected  by 
the  Limited  Liabilitv  Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes   Regulating  Navigation,    Including: 

(1)  The  International  Rules. 

(2)  The   Rules   for   Coast   and    Connecting' 

Inland  Waters. 

(3)  The  Dividing  Lines  between   the  High 

Seas  and  Coast  Waters. 

(4)  The  Lake  Rules. 

(ft)  The  Mississippi  Valley  Rules. 
(6)  The  Act  of  March  3,  lSi>U,  as  to  Ob- 
structing Channels. 

8.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  2G.  1884 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulat- 

ing Bonding  of  Vessels. 

5.  Statutes  Regulating  Evidence  in  the  Federal 

Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


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TABLE  OF  CONTENTS. 


Part   I.    IN    GENERAIi. 

Chap. 

L  Introductory — Definitions. 

II.  Creation  of  the  Eelation  of  Principal  and  Agent — Appointment 

III.  Same  (continued) — Ratification. 

IV.  What  Acts  Can  be  Done   by   Agent — Illegality — Capacity  of   Parties — 

Joint  Principals  and  Agents. 
V.  Delegation  by  Agent — Subagenta. 
VI.  Termination  of  the  Relatioa. 
VIL  Construction  of  Authority. 

Part  II.  RIGHTS  AND  LIABrLITIES 
BET^WEEN  PRINCIPAL  AND  THIRD 
PERSON. 

VIII.  Liability  of  Principal  to  Third  Person — Contract. 
IX.  Same  (continued). 
X.  Admissions  by  Agent — Notice  to  Agent. 
XI.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 
XII.  Liability  of  Third  Person  to  Principal. 

Part  ni.  RIGHTS  AND  LIABILITIES 
BET'WEEN  AGENT  AND  THIRD  PER- 
SON. 

XIIT.  Liability  of  Agent  to  Third  Person  (Including  parties  to  contracta), 
XIV.  Uabillty  of  Third  Person  to  Agent 

Part  IV.  RIGHTS  AND  LIABILITIES 
BET'WEEN  PRINCIPAL  AND  AGENT. 


XV.  Duties  of  Agent  to  Principal. 
XVI.  Duties  of  Principal  to  Agent 
Appendix. 


WEST  PUBLISHING  CO.,  St.  Paul,  Hinn 


(26) 


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5:5J  XX 


tpe  Ean>  of  (XOiffe. 


By  GEORGE  E.  GARDNER, 

yy  X  i 

??     Professor  in  the  Boston  University    Law   School  ?? 

??              IN  THE  HORNBOOK  SERIES.                          $3.75  DELIVERED.  4? 

♦i*y  yt 

♦!♦•?  yy 


♦?  TABLE  OF  CONTENTS. 

yt 


YX  Chap. 

y*t'  I.  History  of  Wills — Introduction. 

a  2.  Form  of  Wills. 

X$I  3.  Nuncupative,  Holographic,  Conditional  Wills. 

!C*I  4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agreement. 

't**t'  5-  Who  may  be  a  Testator. 

\'i*  6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

vy 

•{|*t*  be  Beneficiaries — What  may  be  Disposed  of  by  Will, 

'XX  7-  Mistake,  Fraud,  and  Undue  Influence, 


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yy 

:C»I         8.  Execution  of  Wills. 

X%        9-  Revocation  and  Republication  of  Wills. 


•H*       10.  Conflict  of  Laws. 


►i«»> 


♦H*  II.  Probate  of  Wills. 

fX  12.  Actions  for  the  Construction  of  Wills. 

!C^t  13.  Construction  of  Wills — Controlling  Principles. 

?•*•  14.  Construction — Description  of  Subject-Matter. 

'fk  ^5-  Construction — Description  of  Beneficiary. 

♦k<  16.  Construction — Nature  and  Duration  of  Interests. 


yX  17.  Construction — 'Vested  and  Contingent   Interests — Remainders — 

y,t,  ' 

X»l*  Executory  Devises. 

*0  18.  Construction — Conditions, 

*:*!  19.  Construction — ^Testamentary  Trusts  and  Powers. 

?*:*  20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

•j«)*  — Lapsed  and  Void — Abatement — Ademption — Advancements. 

|:tJ*  21.  Legacies  Charged  upon  Land  or  Other  Property. 

t%  22.  Payment  of  the  Testator's  Debts. 


►!»y      23.  Election. 


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?•»;       24.  Rights  of  Beneficiaries  not  Previously  Discussed. 

»♦«♦• 
^** .,- 


(t^e  jgornBooft  ^ertee.) 


Federal    Jurisdiction 
and    Procedure 


By  ROBE.RT   M.  HUGHES, 

of  the  Norfolk  Bar;  author  of  "  Hughes  on  Admiralty,"  and  lecturer 
at  the  George  Washington  University  Law  School. 


TABLE    OF    CONTENTS. 


1. 

2. 

3. 

4, 


Introduction — What  It  Comprehends, 
The   District  Court  —  Its  Criminal   Juris- 
diction and  Practice. 
Same — Continued. 

The  District  Court — Criminal  Jurisdiction 
— Miscellaneous  Jurisdiction. 
5.    The  District  Court — Bankruptcy. 
6-7-8.    Same — Continued. 

9.    The    District    Court — Miscellaneous   Juris- 
diction. 
10.    The   Circuit   Court — Original   Jurisdiction. 
11-12.    Same— Continued. 

13.    The   Circuit   Court  —  Jurisdiction   by   Re- 
moval. 
1 4-15.    Same — Continued. 


16. 


17. 


18. 


19. 
20. 

21. 

22. 


The  Circuit  Court — Jurisdiction  by  Re- 
moval— Original  Jurisdiction  of  the  Su- 
preme Court  —  Other  Minor  Courts  of 
Original  Jurisdiction. 

Procedure  in  the  Ordinary  Federal  Courts 
of  Original  Jurisdiction — Courts  of  Law. 

Procedure  in  the  Ordinary  Federal  Courts 
of  Original  Jurisdiction  —  Courts  of 
Equity. 

Same — Continued. 

Appellate  Jurisdiction — The  Circuit  Court 
of  Appeals. 

Appellate  Jurisdiction  —  The  Supreme 
Court. 

Procedure  on  Error  and  Appeal. 


The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 

Courts  of  Equity  of  the  United  States  are 

given  in  an  Appendix. 


1  volume,  634  pages.    $3.75  delivered. 


West     Publishing    Co., 


C.5774 


St.    Paul,     Minn 

(28) 


tmrnm* 


Jn  ti}t  ^oxnioo^  ^txm* 


public  Corporation  8 

By  HENRY  H.  INGERSOLL,  LL.  Z>., 
Dean  of  the  University  of    Tennessee  School    of    La* 


£f 


PART  I. 

QUASI  CORPORATIONS. 

Chap. 

I. 

Nature,  Creation,  Classification. 

II. 

Quasi    Corporations — Liabilities,    EHe- 

ments.  Counties,  Property,  etc 

III. 

Same — Continued. 

IV. 

Same — Continued. 

PART  II. 

MUNICIPAL  CORPORATIONS. 

V. 

Municipal   Corporations. 

VI. 

Their    Creation  —  How  —  By     what 

Bodies — Subject    to    what    Restric- 

tions, etc. 

VII. 

Their  Alteration  and  Dissolution. 

VIII. 

The  Charter. 

IX. 

Legislative  Control. 

X. 

Proceedings  and  Ordinances. 

XI. 

Officers,  Agrents,  and  Employes. 

XII. 

Contracts. 

XIII. 

Improvements. 

XIV. 

Police  Powers  and  Regulations. 

XV. 

Streets,     Sewers,    Parks,    and    Public 

Buildings. 

XVI. 

Torts. 

XVII. 

Debts,   Funds,   Expenses,   and   Admin- 

istration. 

XVIII. 

Taxation, 

XIX. 

Actions. 

PART  III. 

QTTASI  PUBLIC  CORPORATIONS. 

XX. 

Quasi  Public  Corporations. 

XXI. 

Railroads. 

XXII. 

Electric  Companies. 

XXIII. 

Water  and  Gas  Companies. 

XXIV. 

Other  Quasi  Public  Corporations. 

738  Pages.    $3.75  delivered. 

Cdest   publishing  Co.,  St.  paul,  jVIinn. 


C476-1 


(29) 


(3n  tge  JgornBooa  ^eriea.) 

A  Handbook  on  the  Law  of 

INSURANCE, 

By  WILLIAM    RE^YNOLDS    VANCE, 

Professor  of  Law  in  the  George  Washington  University. 

The  principal  object  of  this  treatise  is  to  give  a  consistent 
statement  of  logically  developed  principles  that  underlie  all 
contracts  of  insurance,  with  subsidiary  chapters  treating  of 
the  rules  peculiar  to  the  several  different  kinds  of  insurance. 
Special  attention  has  been  given  to  the  construction  of  tl  e 
standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the 
much  desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover,  — 


Historical  and  Introductory. 

Nature  and  Requisites  of  Con- 
tract. 

Parties. 

Insurable  Interest. 

Making  the  Contract. 

The  Consideration. 

Consent  of  the  Parties  —  Con- 
cealment. 

Consent  of  the  Parties  —  War- 
ranties. 


Agents  and  Their  Powers. 

Waiver  and  Estoppel. 

The  Standard  Fire  Policy. 

Terms  of  the  Life  Policy. 

Marine  Insurance. 

Accident  Insurance. 

Guaranty,   Credit,   and   Liability 

Insurance. 
Appendix. 


1  volume,  683  pages.     $3.75  delivered. 


WEST  PUBLISHING  CO.,St.  Paul,  Minn 


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Principles  and  Precedents 

The  following  letter  expresses  so  pithily  the 
pre:  ent  tendencies  in  the  use  of  law  books  that  we 
gf{"  My  print  it  in  full. 

S.  B.  POUND, 

ROSOOE  POUND. 

ATTORNEYS   AT   LAW. 


Rooms  125,  126,  127, 
Burr  Block. 


Lincoln,  Neb.,  November  6th,   1896. 


West  Publishing  Co. ,  St.  Paul,  Minn. 
Gentlemen: 

I  regard  the  plan  of  your  Hornbook  Series  as  a  very  happy  one. 
The  tendency  has  been  very  marked  for  some  years  to  make  text  books 
little  more  than  unvvieldy  digests.  Such  text  books  are  soon  obsolete, 
and  the  expense  of  new  editions  is  large.  The  rapid  development  of 
digest  making  cannot  fail  to  result  in  superseding  the  text-book  digest 
by  the  digest  pure  and  simple.  With  your  Century  Digest  when  ii 
appears,  and  the  Annuals,  there  will  be  no  need  for  the  ordinary  text 
book.  But  for  this  very  reason  there  will  be,  and  there  now  is,  a 
greater  need  for  such  books  as  those  of  the  Hornbook  Series.  For  au- 
thorities and  cases  in  point  we  must  go  to  the  digests;  but  in  order  to 
be  sure  that  we  are  right  before  we  go  ahead,  we  must  have  some  ideas 
as  to  what  we  are  to  look  for.  I  have  found  several  of  the  Hornbooks 
of  great  use  for  this  purpose. 

You  are  also  to  be  congratulated  upon  the  writers  whom  you  have 
chosen  to  do  the  work.  Several  who  bid  fair  to  take  very  high  rank 
among  legal  authors  have  made  their  first  appearance  as  contributors 

to  the  series. 

While  lawyers  have  been  debating  how  to  reform  official  reporting, 
you  have  made  the  decisions  of  all  our  courts  accessible  to  the  pro- 
fession at  comparatively  slight  expense.  While  critics  are  deploring 
the  degeneration  of  text  books,  as  they  deem  it,  you  are  again  coming 
to  our  assistance  by  providing  text  books  that  combine  scientific  treat- 
ment with  practical  usefulness.  The  profession  require  the  former  as 
well  as  the  latter,  but  in  a  busy  age  the  latter  is  an  imperative  necessity. 

Yours  very  truly, 

ROSCOE  POUND. 
CI  299  '  ^^^' 


'''The  ideal  legal  text-book  of  to-day  is  not 
so  much  one  that  enables  the  busy  lawyer  to 
find  authorities — the  digests  and  encyclope- 
dias do  this — as  one  that  refreshes  his  mind 
on  the  fundamental  principles  of  law  that 
underlie  his  case.  *  *  *  The  Hornbook  Se- 
ries offers  the  practitioner  a  most  convenient 
opportunity  to  quickly  review  the  main- 
springs of  the  law  having  relation  to  the 
subject  in  his  mind  at  any  particular  time." 

—  Central  Law  Journal. 


1  •*, 


**Too  much  cannot  be  said  in  commen- 
dation of  that  feature  peculiar  to  the 
Hornbook  Series,  to  wit,  concisely  stat- 
ing the  leading  principles  in  black-letter 
type.  It  not  only  furnishes  the  lawyer 
with  the  most  convenient  method  of  quick- 
ly reviewing  the  general  principles  of  a 
subject,  but  it  tends  to  insure  careful  and 
accurate  statement  on  the  part  of  the  au- 
thor."—  Virginia  Law  Register, 


C4829a 


V-*T->.^ 


m 

DEC 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 

This  book  is  DUE  on  the  last  date  stamped  below 


O    ii^wsi 


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^A\  i  6  1951  /'^ 


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